34 Ga. App. 671 | Ga. Ct. App. | 1925
1. This was a suit upon a promissory note given by the defendant for the purchase-price of a horse. The defendant filed a plea of failure of consideration; but she will not be heard to set up that defense, as she expressly waived any such right that she may otherwise have had when she signed the note sued on, which contained an agreement that the consideration of the note was the purchase-price of a. certain horse bought by her from the plaintiff; that on account of the credit extended to her, she assumed all the risk, and that she purchased the horse on her own judgment and without any express or implied warranty, and without any representations not fully set out in the note. Purser v. Rountree, 142 Ga. 836 (1), 838 (1) (83 S. E. 958), and cases cited. The court did not err in striking the original answer of the defendant.
2. “While parol evidence is admissible to prove a new and distinct agreement subsequent to the original written contract in reference to the same subject-matter (Civil Code (1910), § 5794), such new agreement must be based upon a valuable consideration and embody the essentials of a new contract.”' Phelps v. Belle Isle, 29 Ga. App. 572 (3) (116 S. E. 217), and cases cited. The rulings in these cases show that the court properly struck the proposed amendment to the plea. See, in this connection, Hoffman v. Franklin Motor Co., 32 Ga. App. 230 (5), 234.
3. The court having properly stricken the amendment to the plea and the plea itself, and no evidence having been introduced for the defendant, and that for the plaintiff having demanded a verdict in her favor, the court did not err in directing the jury to return such a verdict.
4. Not being fully convinced that this case was appealed to this court for delay only, the request that ten per cent, damages be awarded the plaintiff, as provided by § 6313 of the Civil Code of 1910, is denied.
Judgment affirmed.
