105 Ga. 577 | Ga. | 1899
Three actions upon promissory notes were brought by Florence against Pattillo in the county court. In the superior court, to which they were carried by appeal, they were consolidated and tried together as one case. It appears from the record that the firm of Florence & Hiles sold to the defendant a newspaper known as the “ Greensboro Herald-Journal,” together with its outfit, at the price of $3,200; that he paid $2,000 in cash or its equivalent, and gave the notes sued on for the balance. These notes were subsequently assigned by the partnership to Florence. It further appears that in the negotiations which resulted in the purchase by Pattillo, one Knowles acted as the agent of Florence & Hiles, with full authority to represent them in the transaction. It seems that Pattillo filed in the county court an answer in each case, the material portions of each of which were as follows: “ Par. 3. And for further plea in this behalf, defendant shows that the notes sued on are three of a series of twelve promissory notes, bearing the same date, given by him to the partnership of Florence & Hiles, of which petitioner was a member, as part of the purchase-price of the Her aid-Journal, a newspaper property in the town of Greensboro. Said property was purchased at a price of thirty-two hundred dollars, of which amount two thousand dollars cash was paid, said notes of one hundred dollars each being given for the balance. At the time said notes were made and said contract of sale entered into, said property was, as is . more fully set out hereinafter, represented to be worth, and ap
To the defenses thus set up the plaintiff demurred as follows: “And the plaintiff in said case files the following demurs ” to the pleas in said case and moves to strike the pleas in s°id case on the following grounds, to wit: 1st. Plaintiff moves †" strike the entire pleas, for the reason that they clo not set up any d ' -mse to the notes sued on under the facts alleged therein. Defc riant does not allege that unon th" of the facts cons ■'fing the fraud that he announced his purpose to rescind, adhered to it,
After the order last mentioned had been entered, the defendant filed an amendment to his answer with a view to amplifying the. allegations therein as to the representations made by Knowles,, which amendment was allowed without objection. There was. a verdict for the defendant, and the plaintiff moved for a new trial, which was denied. He complains here of alleged error in. overruling his demurrer to the defendant’s answer and in refusing to grant a new trial. The motion contained numerous, grounds. Some of them are sufficiently disposed of by what is. now ruled, and none of them, save those alleging that the verdict is contrary to the law and the evidence, are of enough importance to require special notice.
What is said above applies with equal force to the second ground of the plaintiff’s demurrer, Avhich attacked so much of the answer as was contained in paragraphs 4 and 5, and averred that the same Avas.bad because the defendant did not therein allege any effort on his part to rescind the contract and “restore the seller to his original status.” In the argument here, counsel for the plaintiff in error treated this ground of the demurrer as though it was specially directed against the fifth paragraph, and contended that it was not competent, in defense to an action arising ex contractu, to plead as a set-off damages sustained by reason of a fraud practiced upon the defendant to induce him to enter into the contract. We can not, however, undertake to deal with the point thus sought to be raised. In the first place, had
Judgment reversed.