
    Sutherland v. Southern Pacific Guano Company.
    Argued May 17,
    Decided June 7, 1899.
   Simmons, C. J.

On the trial of a suit on a note given for commercial fertilizers, it is no terror for the court to sustain a demurrer filed by the plaintiff to the plea of defendant which claims that the analysis of the fertilizers, branded on the goods, was incorrect or false, when it appears from the plea itself that the analysis claimed by the defendant to be correct does not substantially vary from that guaranteed by the'plaintiff or from that filed by the plaintiff with the commissioner of agriculture of the-State. Spinks v. Rome Guano Co., ante, 614.

Judgment affirmed.

All the Justices concurring.

Complaint. Before Judge Smith. Dodge superior court. September term, 1898.

The action was upon a promissory note containing a guaranty that certain guano for which the note was given was of the standard of analysis branded on each sack.” The defendant pleaded that there was a substantial difference between the true- analysis of the guano and the analysis branded on the sacks. The latter, as set out in the plea, was as follows:

Moisture at 212° Fah. 10 to-20.

Insoluble phosphoric acid, 1 “ 3.

Available “ “ 8 “ 10.

Ammonia, actual and potential, 1 “ 2.

Potash (K20) • 1 “ 2.

The true analysis was alleged to be as follows:

Moisture at 212° Fah. 8.75.

Insoluble phosphoric acid, 1.00.

Soluble “ “ 6.99.

Reverted “ “ 11.03.

Available “ “ 11.77.

Potash (K20) 1.25.

Ammonia, 1.31.

The plea further set up, that the analysis on the sacks was void for uncertainty, because it did not give the exact percentage of each ingredient; that the guano was unsuited for the use intended, and worthless; and that for these reasons there was a total failure of consideration. Also, that plaintiff did not comply with section 1551 of the code, volume 1, in this: It filed with the commissioner of agriculture a statement that the guano for wrhich the note sued upon was given was manufactured by it, and that the place where manufactured was Atlanta, Georgia, which statement was hot true. It was manufactured by the O. A. Smith Chemical Works, in Fulton county, Georgia, outside of Atlanta. The analysis filed in the office of the commissioner of agriculture by the plaintiff, purporting to be the guaranteed analysis of said guano, does not conform to the analysis branded on the sacks containing the guano, the per cent, of insoluble phosphoric acid being 1-2, and the moisture at 212° Fah. being 10-18, in the analysis of file, while the analysis on the sacks states the per cent, of insoluble phosphoric acid to be 1-3 and the moisture at 212 deg. Fah. to be 10-20.

The plaintiff demurred on the grounds, that there was no substantial variance between the analyses set out; that it was not necessary to give the exact percentage of each ingredient; and that the plea did not set up a valid defense.

The court sustained the demurrer, and the defendant excepted.

Roberts & Milner, for plaintiff in error.  