
    5020.
    Keaton v. Birmingham Fertilizer Company.
    Decided October 28, 1913.
    Complaint; from city court of Blakely — Judge Sheffield. June 16, 1913.
    
      B. B. Qollins, Qlessner & Parle, for plaintiff in error.
    
      Barnbo & Wright, contra.
   Hill, C. J.

1. Where suit is brought on a note given for the purchase of commercial fertilizer, and the defense relied upon, based upon section 1774 of the Civil Code of 1910, was that the consideration in part of said note had failed because of a deficiency in the commercial value of the fertilizer for which the note was given, it is incumbent upon the defendant to establish such defense by evidence that the fertilizer was deficient in some or all of its ingredients as guaranteed and printed on the sacks, and that by reason of the deficiency the commercial value thereof had fallen three per cent, below its total commercial value. Cooper v. National Fertilizer Co., 132 Ga. 529 (64 S. E. 650). This deficiency in the commercial value of the fertilizer must be determined by a comparison with the official analysis of the State chemist.

2. The evidence in behalf of the defendant did not show any deficiency in any of the ingredients composing the’fertilizer for the purchase of which the note sued on was given, nor did it show that the actual commercial value of the fertilizer was less than three per cent, of its total guaranteed commercial value. A verdict for the plaintiff was therefore properly directed. Judgment affirmed.

Pottle, J., disqualified.  