#### GRIER *v.*ENTERPRISE STONE COMPANY.

1. While “a plea of total failure of consideration includes partial failure1, of consideration,!’ there must b e evidence introduced showing the extent to which the consideration has failed, before a verdict can be rendered! giving the defendant the benefit of a partial failure.

2. When in a given case the only plea is a plea of total failure of consideration, and the evidence for the plaintiff authorizes a finding for the full amount claimed, and the evidence for the defendant authorizes a *18finding tliat the consideration has entirely failed, as well as that the article sold was of some value, but there is no evidence as to value other than full value, a new trial will not be granted on account of an instruction to the effect that the jury should find a verdict for the defendant in the event that the article was totally worthless; nor because of an instruction that if they should find that the goods were reasonably suited for the purposes intended, they should find for the plaintiff.

Argued February 23,

Decided July 27, 1906.

Complaint. Before Judge Burch. City court of Dublin. May 13, 1905.

The Enterprise Stone Company sued Clark Grier on account for the price of certain artificial stone and slabs which the plaintiff sold and delivered to him. The defendant pleaded that he. purchased the material to be used in a front wall of a building about to be erected by him; that the plaintiff at the time of the purchase expressly warranted the material to be fit, proper, and reasonably suited for use in such wall; that it was so used, and proved not to be reasonably suited for such purpose, was totally worthless for the purposes fox which it was sold, and therefore the consideration for the account sued on had totally failed. On the trial it appeared that the material was purchased for the use stated in the defendant’s plea; that the stone had not hardened when purchased, and the defendant reported this condition to the plaintiff, and plaintiff assured defendant that it would harden properly, and that in the event it did not so harden within six months the defendant need not pay for the same. The evidence in behalf of the plaintiff was to the effect that the stone had properly hardened, and that it was “ first class in every particular.” On behalf of the defendant the evidence was, in brief, that the stone had never properly hardened, and would never do so; that the wall might stand for a considerable period of time, but on account of the softness of the stone would disintegrate faster than if built of brick or other hard substancé, and that the stone was not “at all suited” for the purposes for which it was used. There was a verdict for the plaintiff for the full purchase-price. The defendant moved for a new trial, on the grounds : (1) that the verdict was contrary to the law and the evidence. *(2)*Alleged error in the following charge to the jury: “If you find that the goods sued for were not reasonably suited for the purposes for which they were intended, that is, that they were’ *19totally worthless, you should find a verdict for the defendant.” The error alleged upon this charge was that it instructed the jury that they could not find for the defendant unless they found that the goods sued for were totally worthless, when they should have found for the defendant if the goods were not reasonably suited for the purposes for which they were sold. (3) That the court said in charging, “If you find that the goods sued for were reasonably suited for the purposes for which they were intended, you should find a verdict for the plaintiff.” (4) That the court erred in not charging the law of special warranty.

*T. V. Banders*.and *Akerman & Akerman,*for'plaintiff in error.

*W. G. Davis*and *J. B. Banders,*contra.

Cobb, P. J.

(After stating the foregoing facts.) Defendant had paid nothing for the material for the purchase-price of which the action was brought. The issue made by the plea and the evidence seems to have been whether such material was totally worthless. If under the evidence it was not entirely worthless, there was no evidence tending to show how much less than the purchase-price it was worth, and therefore nothing upon which the jury could find for the plaintiff less than the full price. Consequently there had to be a verdict for the plaintiff for the amount claimed, or a general verdict for the defendant. *Hinkle*v. *Burt,*94 *Ga.*506; *Otis*v. *Holmes,*109 *Ga. 775.*This being true, the charges complained of were not hurtful to the defendant. The other grounds of the motion for a new trial do not require consideration.

*Judgment*affirmed,

*All the Justices concur, except Fish, G. J absent..*