7 Ga. App. 299 | Ga. Ct. App. | 1910
J. Crouch. & Son brought suit against Pidcock and the several other defendants named, upon a plain promissory note, payable to J. Crouch & Son or order, and reciting no other consideration than “value received.” For plea the defendants admitted the execution of the note, but set up that the consideration had wholly and totally failed, for the reason that the consideration of the note was a stallion which the plaintiffs had sold to the defendants. It is set up in the plea that the plaintiffs’ agent proposed to sell them the stallion, representing that he was á full-blooded, thoroughbred, imported, German coach-stallion, and that the horse was well capable of performing the service for which he was intended, — -namely the getting of colts; that as a matter of fact the defendants subsequently discovered that the representations made .as to the horse being an imported stallion were untrue, as he was born and bred in Lafayette, Indiana; that he was utterly worthless, as he was incapable of begetting enough colts, although put to fertile mares, to pay the expense of keeping him; that the sterility o-f the stallion resulted from some innate physical defect; that the deficiencies set out above were unknown to the defendants at the time they bought and accepted the stallion, and they could not by the exercise of ordinary care have discovered them. The defendants further pleaded that at the time they signed the note and closed the trade for the purchase of the horse, “it was distinctly understood and agreed by plaintiff’s agent, with defendants, that one K. M. Morrison, -who was and is a man of large means, was to sign said note and become liable therefor jointly with defendants; and that, notwithstanding such agreement upon the part of said
1. We will first dispose of the plea setting up that Morrison was also to sign the note. As originally pleaded, the transaction afforded a good defense, for the plea set up in substance that the note had never been delivered as a final embodiment of the contract; that it had been delivered to the plaintiff’s agent in escrow, its final delivery to be complete only when Morrison had signed. As against original holders of the paper, this is a good defense. Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590); American Jobbing Association v. Register, 5 Ga. App. 543 (63 S. E. 599). However, the defendants, by amendment, struck this, and set up not that the contract was to be incomplete and the note to be held in escrow until Morrison signed it, but that, though the trade was closed by the note, there was a promise on the agent’s part to secure the signature of Morrison; and this is merely to plead a promise inconsistent with the writing. In the Heitmann case, supra, the distinction is drawn between these two very similar transactions. The court did not err in striking this portion of the plea as amended, though he would have erred in striking this portion of the defense as originally pleaded.
2. We think, however, that the other defense set up, — the defense of total failure of consideration, — was good. This plea set up nothing variant from any recital of the note. This is an entirely different case from Holcomb v. Cable Co., 119 Ga. 466 (46 S. E. 671), and Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E.
Judgment reversed.