49 S.E.2d 677

A. E. SPEER INCORPORATED v. McCORVEY.

32125.Court of Appeals of Georgia.
DECIDED SEPTEMBER 25, 1948.

1. The general grounds of the motion for a new trial afford no reason for a reversal of the case, because the verdict is authorized by the evidence.

2. (a) An oral motion to strike performs the office of a general demurrer, and is ineffectual unless the pleading at which it is directed as a whole is fatally defective.

(b) Where a part of a pleading is good and a part bad, the latter cannot be reached by an oral motion to strike the pleading.

(c) On the trial either party has the right to support by evidence the allegations of his pleadings as laid.

3. Where a promissory note is given instead of purchase-money for personal property the sale of which was effected by parol contract, the note containing no reference to the property, it is not the contract of sale between the parties, but only shows the obligation of the vendee. Accordingly, in such a case evidence as to the breach of an express warranty of the property is not inadmissible as being in violation of the rule against altering or varying the terms of written contracts.

4. A plea of total failure of consideration includes a plea of partial failure of consideration.

DECIDED SEPTEMBER 25, 1948.
Complaint on note; from Thomasville City Court — Judge Craigmiles. May 24, 1948.

The plaintiff in error, A. E. Speer Incorporated, hereinafter referred to as the plaintiff, brought a suit in the City Court of Thomasville against Mrs. D. J. McCorvey, hereinafter referred to as the defendant, on a promissory note for $102.50 principal, and interest at 8% per annum after maturity and 15% attorney’s fees, as provided for in said note.

The defendant filed an answer and cross-action, in which she admitted the jurisdiction of the court and the execution of the note. She denied any indebtedness on the note and denied the alleged notice of intention to sue for attorney fees. By way of

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further answer and cross-action, the defendant contended substantially: that she was entitled to a judgment against the plaintiff because, on the date of the execution of the note, the parties entered into a contract whereby the plaintiff was to install an oil-burning tobacco-curing apparatus in the defendant’s tobacco barn, which was not of the usual square shape, but was 18′ wide by 24′ long; that the defendant, being in doubt that this equipment could satisfactorily replace her wood-burning furnace in a barn of this shape because of the probable lack of uniform temperature throughout a long barn, informed the agent of the plaintiff of her misgivings; that the agent thereupon inspected the barn and stated that he thought he could make it work by placing a burner in each end of the barn; that they would try it upon condition that, if it failed to maintain uniform temperature throughout the barn, the plaintiff would take back the equipment without cost to the defendant; that this offer was accepted, and thereupon the defendant paid the plaintiff $50 cash and executed the note sued upon for the balance of the purchase-price of the equipment, the same being for $102.50 principal.

The defendant further contended: that upon the installation of the equipment, she began using the same to cure her 1947 crop of tobacco; that the same failed to provide a uniform temperature; that the tobacco hung in the middle part of the barn cured out 12 to 18 hours later than that hung in the ends near the burners; that the plaintiff’s agent came back two or three times and tried to make the equipment operate properly, but failed to improve its performance; that the defendant tried this equipment out on four barns of tobacco, and with each it required a day longer to cure the tobacco than it would take with proper equipment; that thereupon the defendant tendered back to the plaintiff said equipment, continued so to tender it, and refused to pay the note; and that the plaintiff refused to accept the equipment back, and has failed and refused to refund the $50 cash down-payment.

The defendant prayed for judgment for this item of $50 and for a like sum claimed by reason of the alleged breach of certain implied warranties. The claim based upon the alleged implied warranties was later abandoned. The defendant further contended that the equipment was almost worthless for curing

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tobacco; that the defendant could not afford to use it for that purpose for the reasons alleged; that its only value was for junk or spare parts, not exceeding $15 for that.

Upon the trial of the case, the defendant admitted the notice of intention to sue for attorney’s fees, and thereupon the plaintiff orally moved the trial court to strike the answer, upon the grounds substantially that, after the admission of the notice of intention to sue for attorney’s fees, the answer set forth no defense; that certain portions of the answer constituted an attempt to add to and vary the terms of the note by an alleged parol agreement; that certain parts of the answer constituted an attempt to plead total failure of consideration, said answer at the same time showing that the equipment in question was of some value. This motion was overruled and exceptions pendente lite thereon were duly preserved.

The case proceeded to trial and the jury returned a verdict for the defendant. Construing the evidence in its most favorable light to support the verdict, the jury was authorized to find facts in support of the allegations of the answer as to the parol contract inducing the execution of the note and the installation of the equipment, the failure of the equipment to perform satisfactorily, the tender of the return of the equipment, its refusal, and the refusal of the plaintiff to refund the $50 cash down-payment. One witness testified that the equipment was worthless.

The plaintiff filed a motion for a new trial based upon the general grounds. This motion was later amended by adding three special grounds, in each of which the plaintiff contends that the trial court erred in admitting the testimony of certain witnesses in evidence, over timely objection that it attempted to add to and vary the terms of the written note sued upon by parol evidence and conversations, representations, and statements made prior to the execution of the note.

The trial court entered judgment overruling the motion for a new trial as amended. This judgment and the judgment overruling the motion of the plaintiff to strike the answer are both assigned as error.

Jesse J. Gainey, for plaintiff.

P. C. Andrews, for defendant.

TOWNSEND, J. (After stating the foregoing facts.)

1. The

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general grounds of the motion for a new trial afford no reason for a reversal of the case, because the verdict is authorized by the evidence. It was not denied that the witness Baumgardner was authorized as agent of the plaintiff to sell and install the equipment in question. Three witnesses testified to the express warranty of the agent that he felt reasonably sure the burners would heat the building properly and that, if they did not do so, he would take back the merchandise and they would not have to pay for it. The defendant testified that she bought the burners in reliance on this warranty. There was ample evidence to the effect that the burners did not heat the building properly.

2. The evidence contended to be inadmissible by the three special grounds of the amended motion for a new trial is authorized by the answer. “It can not be at this time even a matter of slight doubt that a plaintiff is entitled to prove everything he alleges in a petition upon which he is permitted to go to trial without objection on the part of the defendant, either to its form or its substance.” Mayor c. of Macon v Melton, 115 Ga. 153, 156 (41 S.E. 499); Overstreet v. W. T. Rawleigh Co., 75 Ga. App. 483 (2) (13 S.E.2d 774). Therefore it necessarily follows that this case must be controlled by a decision as to whether the trial court properly overruled the motion of the plaintiff to strike the answer of the defendant.

An oral motion to strike performs the office of a general demurrer, and is ineffectual unless the pleading against which the motion is directed as a whole is fatally defective. Meads
v. Williams, 55 Ga. App. 224 (189 S.E. 718). A motion to strike the answer will not lie where the answer is good in part. See Braddy v. W. T. Rawleigh Co., 64 Ga. App. 682
(14 S.E.2d, 130). In a suit on a note given for purchase-money of personalty, a plea of failure of consideration is subject only to special demurrer and can not be reached by a motion to dismiss. See Gullett Gin Co. v. Seagraves, 49 Ga. App. 850
(176 S.E. 922).

Whether or not a part of the answer might have been subject to special demurrer, if any part of it is good and constitutes a proper defense to the action, it is not subject to an oral motion to dismiss. The answer, unless its bad portions have been reached by special demurrer, must stand as a whole, and the evidence in support of any part of it is admissible because the defendant has the right to prove her pleadings as laid.

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3. Evidence as to the parol express warranty in connection with the sale of the burners does not violate Code § 38-501 as altering or varying the terms of a written contract. A warranty, express or implied, is an incident to the sale of any chattel unless expressly waived, and enters into the consideration thereof. A plea of breach of warranty is the substantial equivalent of a plea of failure of consideration; and the defense is allowed upon the principle that the consideration of a note is always open to inquiry so far as the promise to pay depends upon its existence. Parol evidence is admissible, not for the purpose of showing that a promise different from the written one was made, but that it is different in legal effect as a consequence of the want, cessation, or shrinkage of the consideration. Se Pryor v. Ludden Bates, 134 Ga. 288 (67 S.E. 654, 28 L.R.A. (N.S.) 267); Aultman v. Mason, 83 Ga. 212
(9 S.E. 536). It was pointed out in Kemp v. Byne, 54 Ga. 527, that a negotiable instrument given for purchase-money does not purport to be the actual contract of sale, but is signed by and shows the obligation of the vendee only. The obligation of the vendor, of which the warranties assumed by him are a part, rests in parol, and parol evidence to prove the terms of such a contract are always admissible.

4. The plaintiff’s objection to paragraphs 9 through 12 of the answer, on the ground that they attempt to plead a total failure of consideration and should have been stricken, because the answer affirmatively shows that the apparatus in question is of some value, is not sound. A plea of total failure of consideration includes partial failure of consideration. Pitts Shoe Co. v. Stein, 25 Ga. App. 162 (2) (103 S.E. 415). Nor is it sufficient ground for reversal of this case that the defendant, after assuming the burden of proof, did not, according to the plaintiff’s contention, introduce proper evidence as to the percentage by which the value of the equipment had been reduced in order that the jury might arrive at the proper abatement of the purchase-price if they found that there was, in fact, a partial failure of consideration.

We feel that there was evidence sufficient to have enabled the jury to reach a proper verdict. The defendant and other witnesses testified as to the number of barns of tobacco cured, that it required an extra 18 to 24 hours to cure the tobacco in the center of the barn, that the temperature varied between 18 and

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20 degrees, that it was necessary to heat the stoves red hot, which was deleterious to the tobacco cooking near the stoves, that the firehazard so created made it necessary to have somebody watching the stoves at all times, and that the salvage value of the equipment was approximately $15. On the basis of this evidence, the jury returned a verdict under which the plaintiff was allowed to keep the $50 cash down-payment previously received, and the purchase-price was abated by $102.50, the amount of the note. It would, therefore, seem that the jury, in finding for the defendant, and taking into account all the evidence presented in the case, might properly have arrived at a decision abating the purchase-price of the equipment by approximately two-thirds. See Code, §§ 14-305, 96-306.

The judgments of the trial court, overruling the motion of the plaintiff to strike the answer, and overruling the motion for a new trial as amended, are without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.