16 Ga. App. 146 | Ga. Ct. App. | 1915
On June 18, 1912, Mrs. Ida B. McClellan purchased from William Bawling a dwelling house and lot for $4,000. Mrs. McClellan paid $25 in cash, and gave 92 purchase-money notes payable monthly (all for $25 except the last, which was for $21). The first note fell due August 1, 1912, and the last was payable March 1, 1920. There was a clause in each note as follows: “1 hereby agree that if any one of the said, notes shall become due and remain unpaid at one time longer than sixty days after maturity, then all the remaining unpaid notes shall be considered as due, and the right of action on all shall at once exist.” Mrs. McClellan paid, the first three notes, which fell due August 1, September 1, and October 1, respectively. The note which fell due November 1, 1912, was not paid. On June 17, 1913, Bawling brought suit on all the unpaid notes, alleging that note No. 4, due November 1, 1912, was unpaid and had remained unpaid longer than sixty days, and that he had exercised his option to declare the entire series of notes due. On July 7, 1913, Mrs. Mc- , Clellan filed her answer, in which she made no claim whatever that the house was in an unfinished condition when she bought it and moved into it, or that the plaintiff had verbally agreed to finish it. She made no claim of set-off or recoupment whatever against the plaintiff’s suit.. On April 16, 1914, she filed an amended answer in which she for the first time set up that the house was in an unfinished condition when she moved in, and that the plaintiff made a verbal agreement with her that he would complete it before the first note fell due; and in this amended answer she sets up a claim for recoupment.
We think it necessary to discuss the 3d headnote only.- Mrs. McClellan claims that the house was in an unfinished condition when she moved in, and that Bawling promised to complete it, and that this, promise was never carried out, and that it would require at least $150 to complete the house in the manner that Bawling had promised. This alleged verbal contract, however, according to Mrs. McClellan’s own testimony 'and her amended answer, was made before she signed the written contract for the purchase of the property and gave her purchase-money notes in payment of
Under our view of the law, there being no other legal result possible, the court did not err in directing a verdict for the full amount sued for, less the $150 recoupment allowed.
Judgment affirmed.