
    4192.
    COCHRAN v. JONES & OGLESBY.
    Where, in an instrument in the form of a note and mortgage for the purchase-price of a mule, it is stated that the purchaser agrees to pay for the mule if it should die, and that he assumes this risk in consideration of the credit extended, and purchases on his own judgment, he is not, upon the death of the mule, entitled to prove an express warranty of soundness, and defeat the purchase-price on account of a breach of such warranty.
    Decided July 2, 1912.
    Affidavit of illegality; from city court of Cartersville — Judge Foute. March 20, 1912.
    
      Finley & Henson, for plaintiff in error. J. T. Norris, contra.
   Pottle, J.

An instrument was executed in the form of a note and mortgage to secure payment of the purchase-price of two mules. The instrument obligated the purchaser to pay $25 per month until the whole amount should be paid. It contained the further stipulation: “I or we insure the good condition and safekeeping of said property, and will pay if it be lost, damaged, or destroyed, and, if live stock, will pay though it may die. I or we assume said risk in consideration of the credit extended, and purchase the property on my or our own judgment.” One of the mules died. The mortgage was foreclosed and the purchaser pleaded in defense that the seller had expressly warranted the soundness of the mule, and that the mule had died from a disease which it had at the time of the sale. The issue was submitted to the jury, and they found against the defendant. His motion for a new trial contains several grounds, but they will not be specially noticed, since we are clearly of the opinion that the terms of the written contract precluded the defense relied on.

Where a note is given for the purchase-price of an article and the terms of the sale are not set forth in the note, parol proof of an express warranty and a breach thereof does not violate the rule forbidding the variation of or addition to a written contract by parol evidence. In such a case the contract of sale is in parol, and the note is simply evidence of the indebtedness. Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267). But where the note purports to contain the contract of sale and sets forth the warranty made, or that the seller did not warrant the soundness or suitability of the thing sold, the parties have reduced their contract to writing and it can not be varied by parol. McNeel v. Smith, 106 Ga. 215 (32 S. E. 119), and cit. If the statement in the written instrument, that the purchaser would pay though the mule should die, had stood alone, the words, “from a cause not existing at the date of the sale,” might be superadded, as expressing the intention of the parties. Whigham v. Hall, 8 Ga. App. 509 (70 S. E. 23). But when the purchaser, in consideration of credit extended, added to the stipulation to pay if the mule died the statement that he purchased the property on his own judgment, no other construction of the terms of the sale is admissible than that he did not rely on any statements or warranties by the seller, but acted on his own judgment, based upon his own examination and upon his own knowledge and experience. A finding in favor of the plaintiff was demanded, the plaintiff in error was not entitled to an abatement of the purchase-price, the right result was reached, and, if any errors were committed, they were harmless.

Judgment affirmed.  