32 Ga. App. 229 | Ga. Ct. App. | 1924
Proceedings were had in this case in the following chronological order:
(1) Franklin Motor Car Company filed suit against J. Leon Hoffman to the February term, 1923, of the superior court of DeKalb county, upon plain, ordinary promissory notes, the consideration of which was not disclosed in the suit. Each note, however, contained a statement that it was one of a series of notes secured by a “title contract.”
(2) At the appearance term the defendant filed an answer admitting the execution of the notes sued upon, alleging that they were executed for the purchase price of an automobile, and setting up what in this case we will treat as sufficient pleas, to the suit as originally filed, of fraud and failure of consideration. The alleged fraud related only to the condition of the car. It was alleged that the car was worthless. The plea alleged also certain facts which the plaintiff in error, the defendant in the court below, has sought to sustain in this court alternatively, — that is, either as a plea of mutual rescission of the contract, or of accord and satisfaction, the same being contained in paragraph 11 of the answer as follows: “For further plea defendant says that on or about December 10, 1922, the contract was rescinded and the car returned .to plaintiff, and is now in their possession. A short time before this last return of the car defendant had returned it
(3) When the case was called for trial at a subsequent term of court the plaintiff offered and the court allowed an amendment to the petition, adding thereto a copy of the contract referred to in the notes sued on, and averring that such contract was executed by the defendant contemporaneously with the notes. The contract set out in the amendment contained the following stipulation: “The vendor does not warrant said property, and makes no representation concerning same except that the title to same is in the vendor and free from incumbrances.” The notes wore described in the contract conformably with the averments of the original petition.
(4) Thereupon the defendant offered two amendments, the first of which, in connection with additional averments upon the subject of fraud and failure of consideration, included the following references to a contract executed between the parties, touching the sale: “All of the representations were made to defendant prior to the purchase and delivery of the car, and prior to the signing of the contract to purchase and the notes therefor, that is the notes sued on;” “defendant, . . relying on said representations, accepted the car, signing the purchase contract, and gave his notes for same, the notes sued on.” There were also 'in this amendment several additional statements similar to these, signifying that the defendant had signed a sales contract, referred to by him as “the contract,” “said contract,” or “his contract.” This amendment sought to add-the following to the averments of the original plea upon the subject of rescission (or accord and satisfaction): “The circumstances leading up to the rescission of the contract between the parties as set forth in the 11th paragraph of defendant’s original answer were substantially as follows: The car commenced to give trouble soon after defendant purchased it, and would not run. Defendant took it back to plaintiff for repairs from time to time, and, upon their assurances that they would fix it, he would
The second amendment was as follows: “With further reference to the agreement between the parties, rescinding the contract of purchase of said car, said rescission agreement was for the purpose of settling the differences existing between the parties,— in other words, as a compromise or settlement of their differences with reference to said car, — defendant claiming all the time to plaintiff that the car would not run, and plaintiff promising to fix it; and it was to compromise and settle their differences without recourse to litigation that the rescission came about, and in
(5) The amendments to the defendant’s answer were disallowed; the original plea, upon the motion of the plaintiff, was stricken; and a verdict was directed for the plaintiff for the full amount sued for.
Nothing need be added to the rulings announced in head-notes 1, 2, 3 and 4.
We construe the answer and the proffered amendments as attempting to plead a rescission by mutual consent, under the Civil Code, § 4304, which provides as follows: “A rescission of the contract by consent, or a release by the other contracting party, is a complete defense.” See, upon this question, the following: Cheek v. McWhorter, 29 Ga. App. 109 (1) (2) (113 S. E. 812); Manley v. Underwood, 27 Ga. App. 822 (1) (3) (110 S. E. 49); Daniel v. Burson, 16 Ga. App. 39 (1) (84 S. E. 490); Battle v. Holmes, 146 Ga. 245 (3) (91 S. E. 32); Crutchfield v. Dailey, 98 Ga. 462 (1) (25 S. E. 526); Barnett v. Terry, 42 Ga. 283; Johnson v. Worthy, 17 Ga. 420 (2).
A rescission of an executory contract of sale must be pleaded with substantially the same definiteness as any other contract or. agreement. In order for a plea successfully to set up a rescission as a defense to a suit upon the contract, it must appear, directly or impliedly, that the parties are to be restored to their original status. It is not sufficient “to simply set out the fact as a legal result; but the opposite party is entitled to be put in the possession of the circumstances relied on to establish it.” Barnett v. Terry, 42 Ga. 283, 287; Daniel v. Burson, supra; Steen v. Harris, 81 Ga. 681 (2) (3) (8 S. E. 206).
In this case the plea, together with the amendments tendered, only averred that subsequently to the sale, when the automobile was giving the defendant trouble, the plaintiff insisted that the defendant should try it again, and agreed that “if it did not run satisfactorily, they would take the car back and make some satis
The facts as the defendant has stated them do not show an agreement to rescind the contract of sale, and thus to extinguish the defendant’s obligation for the purchase-money, but merely a promise on the part of the plaintiff that it would reacquire the property upon terms as to which the parties have reached no agreement. There was no sufficient defense of a mutual rescission, either in the original answer or in the answer and the amendments taken together.
Nor can the averments which we have discussed in the preceding division of this opinion be considered a sufficient plea of accord and satisfaction. “Where accord and satisfaction is pleaded in bar to a suit based on the original cause of action, it must appear that the accord has been fully executed.” Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another, which might go on to any extent. Every accord ought to be full, perfect, and complete; for if divers
We think that the original answer sufficiently set forth the defenses of fraud and failure of consideration as to the suit as originally framed, but it is unnecessary to decide whether it did or did not, in the view which we take of the case as a whole. Treating the plea as being sufficient at the time it was filed, as against an oral motion to strike, it could not be rendered bad by a subsequent amendment to the plaintiff’s petition. The failure of a defendant to answer an amendment to the petition does not authorize the court to treat the allegations in the amendment as being admitted. Hudson v. Hudson, 119 Ga. 637 (4) (46 S. E. 874). While a defendant may file an answer to an amendment to the petition, admitting or denying material allegations in the amendment, or stating why he can neither admit nor deny them, he is not required to make answer to an amendment. Brown v. Atlanta, Birmingham & Atlantic R. Co., 131 Ga. 259 (1) (62 S. E. 186). See further, on this subject: National Pencil Co. v. Pinkerton’s National Detective Agency, 19 Ga. App. 429 (1), 432 (91 S. E. 432); McElmurray v. Blodgett, 120 Ga. 9 (2) (47 S. E. 531); Miller v. Georgia Railroad Bank, 120 Ga. 17 (3) (47 S. E. 525); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (6), 707 (50 S. E. 1008); Watson v. Barnes, 125 Ga. 733 (1) (54 S. E. 723); Brown v. Tomberlin, 137 Ga. 596, 600 (73 S. E. 947).
The mere fact, therefore, that the plaintiff amended its petition, setting up a sales contract containing a stipulation which would exclude the defenses of fraud'and failure of consideration, would not have authorized the court to strike the original plea. Whether
The word “the” is a definitive, and is commonly used before nouns which are specific or understood. As used here it was indicative of something already before the court in the pleadings. The only contract which had thereto been referred to was that alleged in the plaintiff’s amendment. Necessarily this is the contract whose execution the defendant in one of his amendments admitted.
But the amendments, having been rejected, never became a part of the original plea so as to render it bad as a whole and subject to a motion to .strike (compare Hicks v. Beacham, 131 Ga. 89 (2) (62 S. E. 45); Griffin v. Russell, 144 Ga. 275 (2) (87 S. E. 10, L. R. A. 1916F, 216); Pollard v. Blalock, 147 Ga. 406 (2) (94 S. E. 226)); and yet if they had been allowed, as the defendant insisted in the court below and insists here they should have been, the plea as a whole, by reason of the averments referred to in the
While it was error to strike the plea as originally filed, it appears from the record that the correct legal result was reached, and the defendant was not harmed by the improper method adopted in attaining it. Giving to the defendant the benefit of everything pleaded and of everything which he offered to plead, a finding is demanded in favor of the plaintiff for the amount sued for. It follows that the action of the court in directing such finding should not be reversed because of the error to which we have referred. See Norris v. Rawlings, 138 Ga. 711 (3) (76 S. E. 60).
Our decision necessarily involves a holding that the defendant’s first amendment should be construed as admitting the execution of the contract set up by the plaintiff’s amendment to the petition.
Judgment affirmed.