Schube v. Parts Distributors, Inc.

160 Ga. App. 882 | Ga. Ct. App. | 1982

Quillian, Chief Judge.

Suit on open account.

Schube was an automotive parts supplies distributor who purchased supplies from wholesalers and sold them to auto service stations. Over a period of 3-4 months in 1974 he purchased several hundred cases of Chemco oil filters from Parts Distributors on open account and sold them to numerous customers. Some of the filters were defective and, to keep his customers who complained, Schube agreed to buy them back. He tried to get Parts Distributors to take them back but could not as Chemco had sold them as a closeout and would not accept them back. Parts Distributors did agree to reimburse Schube for any defective filters he brought to them, but he brought none. Schube became delinquent in his account with Parts Distributors who brought this suit on the account in the amount of $2,888.65. At trial, Schube admitted he owed the amount of the account, but claimed failure of consideration because the filters were defective. Schube had no records and could not give any precise figures. He testified that he bought and sold a tremendous amount of the filters, some not from Parts Distributors, that some were defective, that he had to buy back most of the unused filters, and that he threw away all the returned filters, used or unused. Judgment at a bench trial was for Parts Distributors for amount claimed plus interest and costs, from which Schube appeals on the general grounds.

The evidence does not show a total failure of consideration, as Schube could not show that all the filters were bad, only a small unspecified amount. Since Schube could not show with particularity and certainty the extent of the partial failure of consideration so that the court could arrive at an amount without guesswork or speculation, Schube did not carry his burden of proof of the defense of partial failure of consideration. Coast Scopitone, Inc. v. Self, 127 Ga. App. 124 (1) (192 SE2d 513).

Decided January 11, 1982. Alvin N. Siegel, for appellants. Robert Wayne, for appellee.

The court’s finding was not clearly erroneous (Code Ann. § 81A-152 (a)) and is affirmed.

Judgment affirmed.

McMurray, P. J., and Pope J., concur.