22 Ga. App. 328 | Ga. Ct. App. | 1918
(After stating the foregoing facts.) The general denial that the defendant was indebted set up no defense. Civil Code of 1910, § 3300; Woods v. Roberts, 97 Ga. 254 (22 S. E. 986); Woods v. Almand, 97 Ga. 255 (22 S. E. 982). The remainder of the affidavit of illegality attempts to set up as a defense a breach of an express warranty. The express warranty was that the plaintiffs warranted or guaranteed the automobile to run perfectly for a period of eight months; and that they further guaranteed to replace all broken and defective parts of said automobile for a period of eight months. It nowhere appears in the affidavit of illegality that the defects complained of- occurred during the eight months period covered by the warranty. It does not appear that the automobile did not run perfectly during that eight months. It does not appear when these alleged defects occurred. It does not appear tha-t the refusal to replace any defective parts occurred during this eight-months period. In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may avail himself of the ^defense, of recoupment. Arnold v. Carter, 125 Ga. 319 (54 S. E. 177). “The plea of recoupment being a cross-action by the defendant against the plaintiff, its allegations as to damages must be as specific and certain as if made in a petition.” Whitt v. Blount, 124 Ga. 671 (53 S. E. 205); Beck Duplicator Co. v. Fulghum, 118 Ga. 836 (45 S. E. 675); Atlanta Glass Co. v. Noizet, 88 Ga. 43 (13 S. E. 833). The burden is upon the mortgagor or affiant of establishing the allegations of fact in the nature of an affirmative defense. Civil Code of 1910, § 3302; Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). The plea of recoupment must therefore set up all the facts necessary
Judgment affirmed.
