Smith v. FIRST AMERICAN BANK & TRUST COMPANY

228 S.E.2d 227 | Ga. Ct. App. | 1976

139 Ga. App. 292 (1976) 228 S.E.2d 227

SMITH et al.
v.
FIRST AMERICAN BANK & TRUST COMPANY.

52282.

Court of Appeals of Georgia.

Argued June 7, 1976. Decided July 9, 1976.

Bryant & Stone, George H. Bryant, for appellants.

Cook, Noell, Bates & Warnes, J. Vincent Cook, for appellee.

BELL, Chief Judge.

Plaintiff brought this suit to recover a deficiency balance allegedly due on an installment note and security agreement, plus interest and attorney fees. The case arose out of defendant Bobby Lee Smith's purchase of a mobile home. His parents, the other defendants, according to the complaint, guaranteed payment of the note and security agreement. The defendant son set up the affirmative defense of accord and satisfaction and the other defendants pleaded that their signatures to the guaranty were obtained by specified acts of fraud and misrepresentation of plaintiff and that the guaranty failed for lack of consideration. The plaintiff moved for summary judgment which the trial court granted. An examination of the record shows that plaintiff has failed to sustain his burden of proof by piercing the allegations of the affirmative defenses. These present material issues of fact for resolution by a jury.

Judgment reversed. Clark and Stolz, JJ., concur.