
    11477.
    Simpson v. McMillan.
    Decided April 15, 1920.
    Complaint; from Cobb superior court — Judge Morris. July 25, 1919.
    This case was transferred from the- Supreme Court to the Court of Appeals, it being held that " the prayer for cancellation of the noté sued on was not pertinent to the defense, and cannot have the effect of converting the suit into an equitable cause cognizable by ” the Supreme Court on writ of error. 150 Ga. 119 (102 S. E. 826).
    
      Neufville & Neufville, for plaintiff in error.
    
      Abbott & Wallace, contra.
   Stephens, J.

1. Damage to business or loss of time suffered by the purchaser as a result of a total or partial failure of consideration or a breach of warranty cannot be recovered as damages for a breach of a contract of sale. In a suit by the seller against the purchaser to recover the balance due upon a promissory note given for the purchase-price of personalty, a plea of recoupment by the purchaser, in which he prayed damages against the seller for loss of time and damage to the business of the purchaser, was properly .stricken on demurrer.

2. The case having proceeded to trial upon the plea alleging a total failure of consideration, which includes a partial failure of consideration, and also breaches of warranty upon the part of the plaintiff, and the evidence showing in detail wherein the machinery purchased was defective and failed to either fully or partly perform the service for which it was intended, sufficient data was thereby furnished from which the jury could estimate with reasonable certainty the extent to which the consideration had failed or to which the defendant had been damaged as a result of a breach of warranty by the plaintiff; and the direction of a verdict for the plaintiff was therefore error.

Judgment reversed.

Jenhins, P. J., and Bill, J., concur.  