
    222.
    Burr v. Atlanta Paper Company.
    Complaint, from city court of Atlanta — Judge Beid. January 28, 1907.
    Argued March 26,
    
    Decided May 24, 1907.
    
      W. R. Hammond, for plaintiff.
    
      Slaton & Phillips, for defendant.
   Russell, J.

1. In case of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration, growing out of defects discovered after acceptance, even though such defects would have become apparent upon an examination before delivery. Cook v. Finch, 117 Ga. 541, 44 S. E. 95. And partial payments, with knowledge of the defective condition, will not estop the-buyer from pleading partial failure of consideration. Moultrie Repair Co. v. Hill, 120 Ga. 731, 48 S. E. 143.

2. The defendant having pleaded and relied upon an express warranty and partial failure of consideration, evidence tending to show that the article sold was defective in certain particulars covered by the express warranty was properly admitted; and the jury having sustained the defendant’s plea, their verdict will not be disturbed.

3. The fact that “the vendee accepted deliver of inferior box board, and, with knowledge of its inferiority, caused it to be made into boxes,”' and that for that reason “the vendor would not be answerable in damages for loss accruing from making the box board into boxes,” has-no application in a case where recoupment is not pleaded nor damages asked. While, as a general rule, a vendee can not complain, after acceptance of an article with knowledge of its defective condition, that it is inferior to the quality contracted for, vet where the seller, upon complaint made by the buyer, expressly authorized the vendee to use the article (box board), admitting that it was not up to warranty, and leaving the entire matter in the hands of the vendee, and, after knowledge that the vendee' claimed that the goods were of an inferior, quality, accepted a payment on the goods sold, 'such a state of facts presents an exception to the general rule.

4. Complaint can not be made that evidence is too vague, uncertain, and indefinite to authorize a verdict, when such evidence corresponds in nature, statement, and definiteness with the pleadings, unless attention has been called thereto by demurrer to the pleadings or objection at the ti'ial to the evidence. A case is sustained when the proof fits the plea. Judgment affirmed.  