37 S.E.2d 236 | Ga. Ct. App. | 1946
1. A plea and answer that fails to set out a valid defense may be stricken on oral motion, which is in the nature of a general demurrer.
(a) While such oral motion to strike admits all facts properly pleaded in the plea and answer, it does not admit a fraud charged, except as the facts set out establish or constitute fraud.
(b) It was not a valid defense to a suit on a check, given pursuant to the provisions of a written agreement, that the defendant was induced to sign the agreement by false representations orally made by the plaintiff, but not contained in the agreement, as to the amount of meats, groceries, and equipment in the premises at the time the agreement and check were signed, where the agreement provides that it is in lieu of *506 all prior agreements and that the defendant is "accepting the premises and contents . . as the same now is."
(c) The written agreement of the defendant, "accepting the premises and contents . . as the same now is," meant that the defendant was accepting the premises and contents in their then physical condition and without warranty as to the quantity or amount of such contents.
2. The defendant's plea and answer having been properly stricken on oral motion, and the plaintiff having introduced in evidence the check sued on and the agreement under which it was given, a verdict in favor of the plaintiff was demanded as a matter of law, and the court did not err in directing a verdict accordingly.
3. The evidence demanded the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.
The defendant answered, admitting the execution and delivery of the check and agreement, and set out that they had been executed under the following circumstances: On or about April 20, 1945, he had given the plaintiff an option to purchase his restaurant, store, equipment, groceries, meats, and dwelling for the sum of $12,000. The plaintiff paid $1215 on the option, and was to pay the remainder of $1785 on the option and the remainder of the purchase-price on May 28, 1945. The defendant arrived in Way-cross from Atlanta, where he had been confined in a hospital for *507 heart trouble, on May 27, 1945. On May 28, 1945, his daughter drove him to a lawyer's office, where the sale was to be closed; the plaintiff at that time stated that he could not pay the remainder due, and the attorney for the plaintiff suggested that, since the plaintiff could not pay for the property, "the parties had better call the deal off." The plaintiff asked the defendant if he was going to give him any part of the money that he had paid on the option, and he told the plaintiff that he would not, but later told the plaintiff that he would pay him $915 back, provided the property had not been damaged and there was the same amount of groceries and meats in the place of business as was there when the plaintiff went into possession under his option. "Defendant told plaintiff that he would rather not seek to adjust this matter until he was able to go on the premises and take an inventory to ascertain what was on hand. At this time defendant was in much pain, was weak, and it was necessary on account of his physical condition that he return to his home as soon as possible and go to bed. Plaintiff told the defendant that he was in a hurry and wanted to close out the matter at once, and at this time made the following representations to him: `That there were as many groceries and meats and other merchandise, if not more, in the place of business now as were at the time he first took charge.'. . Within two weeks, when he took an inventory of the business, he found there was $425 less meat, $450 less groceries, and $115 less sheets, blankets, and bed clothing on hand than when the plaintiff went into possession, besides $25 less change in the cash drawer, and a telephone bill of $28 the plaintiff had charged to defendant, and which the defendant had to pay, making a total of $1043 less in the stock of goods than was there when the plaintiff went into possession." The representations made by the plaintiff were false and were made by the plaintiff with the intent that the defendant should act upon them, and were made in such a manner as to mislead and deceive the defendant and did mislead and deceive him to his injury. The check sued on and the agreement attached to the plaintiff's petition were signed by the defendant relying on the representations above set out; and the check and agreement were obtained through fraud and were void. The prayers of the answer were that the check and agreement be cancelled, and that the defendant have judgment against the plaintiff for $1043. *508
On the trial, before the introduction of any evidence, the plaintiff by oral motion moved the court to strike and dismiss the plea and answer of the defendant on the ground that it set forth no valid defense to the written agreement, which the defendant admitted signing, and the defendant did not allege that he signed under such an emergency as would prevent him from knowing the contents of the paper. The trial judge sustained the motion and dismissed the plea and answer. To this ruling the defendant excepted pendente lite and assigned error thereon in the bill of exceptions.
The case proceeded to trial. The plaintiff introduced in evidence the check and agreement signed by the defendant, and rested. Whereupon, the court directed a verdict for the plaintiff for the amount sued for, and a judgment was duly entered on this verdict.
The defendant's motion for a new trial was overruled, and the exception here is to that judgment and to the judgment dismissing the plea and answer.
1. The defendant contends that the court erred in sustaining the oral motion in the nature of a general demurrer and in striking his plea and answer. A defect apparent on the face of the pleadings may be taken advantage of by motion (Code, § 81-302); and where the defect in a pleading is fatal, it may be taken advantage of by an oral motion in the nature of a general demurrer, which motion may be made at any time before verdict. Royal InsuranceCo. v. Oliver,
2. The defendant's plea and answer having been stricken on oral motion in the nature of a general demurrer, and the plaintiff having placed in evidence the check and agreement, the verdict in favor of the plaintiff was demanded, and the court did not err in directing a verdict accordingly. Browning v.Farmers Bank,
The cases cited and relied on by the plaintiff in error do not require a ruling contrary to the one here made. Hinkle v.Hixon,
3. The pleadings and evidence demanded the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.
Judgment affirmed. Felton and Parker, JJ., concur.