TRIPPE v. POTTER

Mrs. Clarice Louise (Jackson) Potter foreclosed the following conditional-sales contract entered into between her and Robert H. Trippe Jr.: "For and in consideration of the sum of Three Thousand Six and No/100 Dollars ($3,600), to be paid as hereinafter stated, the undersigned, Clarice Louise (Jackson) Potter, does for herself . . hereby sell to the undersigned, Robert H. Trippe Jr. . . subject to the conditions hereinafter stated, the following described property, to wit: All right, title and interest in the business operating under the trade name `Jacksonian Advertising Company', including all tangible assets such as mirrors used in barber shops, and supplies, as well as copyrights now effective, use of trade name, and right to operate the business under said trade name, etc. The aforesaid purchase price shall be paid as follows: One Hundred Twenty-five and No/100 Dollars ($125) to be paid August 14, 1948, receipt for which has been acknowledged and given, Four Hundred Seventy five and No/100 Dollars ($475) to be paid on the date of execution of this contract by said Robert H. Trippe Jr., (this total of $600 to be considered as a down payment), the assumption of indebtedness outstanding at Cox Printing Company of Marietta, Georgia, and Frohman Printing Company of Atlanta, Georgia, with the said vendor herein being allowed the benefit of any reduction in said indebtedness with either creditor, and with the assumption of the above named indebtedness said vendee herein is to pay, or arrange to pay said indebtedness immediately so that a release will be forthcoming to vendor within one (1) week from the date of execution of this contract, releasing her from liability on account of said indebtedness; vendee is also to immediately take necessary steps to complete and fulfill outstanding contracts as of the date of this contract, and pay all costs incurred, as well as follow thru and deliver said contracts so that same can be deemed completed, said costs to be mainly for covers for menus, and to be paid as part of the consideration; the balance of the consideration, after payment of $600, assumption of outstanding indebtedness, cost of completing and delivering outstanding contracts, is to be paid at the rate of Fifty and No/100 Dollars ($50) per week, starting seven (7) days after the date of this contract, and continuing each and every ensuing 7 days until the entire purchase-price has been paid . . . [retention-of-title and foreclosure provisions] Delivery of any and all copyrights will be withheld until purchase-price has been paid in full. No warranties express or implied, and no representations, promises or statements have been made by seller unless endorsed hereon in writing, other than that seller has sufficient title and right to sell, and said property is free from encumbrance other than that noted, and which is to be assumed as a part of the consideration. . ." A deputy marshal levied upon and seized seven advertising contracts, 1 lot of menu covers, 1 lot of assorted advertising matter and 1 lot of cuts. The defendant filed the following affidavit of illegality and recoupment: ". . Prior to 21 August 1948 while deponent and plaintiff, Louise Potter, were negotiating for the sale of the business known as Jacksonian Advertising Company, plaintiff sold and delivered to deponent as a part of the sale of said business the title and contracts to nine (9) mirrors which plaintiff valued at $300 each at that time (and affirmed said valuation of $300 each on or about 1st of December 1948); that in fact there are only four (4) of said mirrors in existence and a part of one (1) mirror; that deponent has therefore suffered a partial failure of consideration in the sum of $1350 and that said mirrors are reasonably worth the sum of $300 each. That under his contract with plaintiff on which plaintiff bases this action and fi. fa. deponent was to pay plaintiff the total sum of $3600.00 in cash, goods, and services and has paid the following:

Cash _____________________________________________ 1100.00 On bills of plaintiff ____________________________ 1300.00 Labor ____________________________________________ 115.00 Materials ________________________________________ 453.00 Reprinting covers _____________________________ 219.00 -------- Total ____________________________________________ $3187.00 Recoupment _______________________________________ 1350.00 -------- Total ____________________________________________ 4537.00 Less purchase-price ______________________________ 3600.00 ------- Balance due deponent _____________________________ 937.00 That under deponent's contract with plaintiff, plaintiff was to deliver nine (9) mirrors as hereinbefore alleged, but that plaintiff has failed and refused to do so. Deponent is not indebted in any amount to plaintiff, and the foreclosure is utterly void and without consideration for that plaintiff is indebted to deponent on said foreclosure rather than deponent to plaintiff. . ." The plaintiff demurred to the counter-affidavit and plea of recoupment. The court ordered that unless the defendant amended to meet the demurrer within twenty days the demurrer was sustained. The defendant added the following amendment: "1. Defendant amends paragraph one of his original affidavit of illegality to add the following: `That at the time plaintiff sold your defendant said business she represented to him that said business had as a part of its stock nine (9) mirrors and that he would get title to nine (9) mirrors on signing the contract of sale on which plaintiff is now proceeding; further that plaintiff assured him that she actually had good title to nine (9) mirrors and that defendant did not know that she had title to only four and one-half (4-1/2) mirrors until after the consummation of said sale.' 2. Defendant amends so much of paragraph two of his original affidavit of illegality as reads: `On bills of plaintiff . . $1300' to read: `On bills of plaintiff . . $1300 as follows — Cox Printing Company, Marietta, Ga. $360.50, Frohman Printing Company, 631 Peeples Street, Atlanta, Ga. $940.50 . . total $1301. Defendant further shows that it was contemplated by the parties that the payment of said bills was to be made under the contract of sale . . and that defendant was to receive credit on the purchase-price of the business in the sum of $1301.00; further that plaintiff has been released from any other and further liability by the Cox Printing Company and Frohman Printing Company.' 3. Defendant amends so much of paragraph two of his original petition as reads: `labor $115' to read: `labor $115 paid as follows $20 per week to Mrs. R. H. Trippe for four weeks beginning on or about the 21st of August 1948, and one final payment of $15 to Mrs. R. H. Trippe, defendant further shows that it was understood between him and plaintiff that any expenses for labor were to be credited against the total contract price.' 4. Defendant amends so much of paragraph two of his original petition as reads: `materials $453.00' to read: `materials $622.28 paid as follows: Sameco Co., Inc. _______________________________ $ 28.92 Sameco Co., Inc. _______________________________ 30.27 Sameco Co., Inc. _______________________________ 69.73 Sameco Co., Inc. _______________________________ 133.61 Sameco Co., Inc. _______________________________ 134.50 Sameco Co., Inc. _______________________________ 133.24 Sameco Co., Inc. _______________________________ 28.92 Sameco Co., Inc. _______________________________ 34.32 Sameco Co., Inc. _______________________________ 28.77 that all of said purchases were for menu covers; that petitioner does not have the exact dates of said purchases but that they were made on behalf of the plaintiff and that it was contemplated by the parties that he was to be given credit for these payments on the total contract price.' 5. Defendant amends so much of paragraph two of his original answer as reads: `reprinting covers $219.00' to read: `reprinting covers $241.00 as follows: Discrepancy in Frohman's bill ___________________ $12.00 Printing Francis Ann's Bakery ___________________ 20.00 Cash by wire ____________________________________ 50.00 Dalton Elk Club Printing ________________________ 40.00 Davis Restaurant, Jonesboro _____________________ 20.00 Fites Steak House _______________________________ 5.00 Cedartown Grill _________________________________ 15.00 Sam's Cafe, Griffin _____________________________ 15.00 Covers for Davis Rest. __________________________ 12.00 Eds Milk Bar ____________________________________ 15.00 Cook's Cafe, Buford _____________________________ 15.00 The Anchorage, Marietta _________________________ 20.00 Covers for the Anchorage ________________________ 12.00 further that the prices paid hereon for reprinting and covers was reasonable; that it was contemplated between the parties that these sums were to be applied against the contract price of the business.'" This amendment was ordered filed subject to objection, but the plaintiff did not renew her demurrers or otherwise demur to the affidavit of illegality as amended. On trial of the case and after all the evidence had been introduced, the court directed a verdict for the plaintiff. The defendant's motion for a new trial was overruled and he excepted.

MacINTYRE, P. J.

1. Grounds of a motion for a new trial which are not insisted upon will be treated as abandoned. See Code (Ann.) § 6-1308 and many cases cited under catchword "Abandoned." Special ground 3, complaining of the court's charge to the jury, is so treated.

2. The remaining assignments of error are based upon the general grounds of the motion for a new trial and two special grounds complaining of the exclusion of evidence, and there being no assignment of error upon the direction of the verdict, this court has no authority to decide whether the trial court erred in so directing. Kelley v. Cartledge, 151 Ga. 179 ( 106 S.E. 93); Head v. Towaliga Falls Power Co., 27 Ga. App. 142 ( 107 S.E. 558); Dickenson v. Stults, 120 Ga. 632 ( 48 S.E. 173); Stone v. Hebard Lumber Co., 145 Ga. 729 ( 89 S.E. 814).

3. Special grounds 1 and 2 of the motion for a new trial assign error upon the exclusion of certain specified evidence offered by the defendant in fi. fa., which, he contends, would have sustained the allegations of his affidavit of illegality. Under the allegations of the defendant's affidavit of illegality as amended, the defendant contends that under the terms of the conditional-sales contract, which was foreclosed, he purchased the plaintiff's business, known as Jacksonian Advertising Company for the total price of $3600 to be paid as follows: $600 as a down payment; $360.50 to be paid by the defendant to Cox Printing Company for the benefit of the plaintiff and to be deducted from the purchase-price; $940.50 to be paid by the defendant to Frohman Printing Company for the benefit of the plaintiff and deducted from the purchase-price; and the defendant was to pay all costs incurred in fulfilling certain outstanding contracts between the Jacksonian Advertising Company and its customers as of the date of the conditional-sales contract, and these costs of fulfilling these outstanding contracts were to be paid by the defendant and deducted from the purchase-price. There were also allegations in the nature of a partial failure of consideration.

While it is true that the court is authorized to disregard an answer which is unresponsive to the plaintiff's petition or an answer which does not contain a bona fide defense against the claims of that petition, and this may be done at any stage of the trial, ( Bedingfield Company v. Bates Advertising Co., 2 Ga. App. 107, 58 S.E. 320); and while it is true that confronted with such an answer, the court may even direct a verdict in favor of the plaintiff although such answer has not been demurred to and evidence has been introduced to support it ( Williams Mfg. Co. v. Warner Sugar Refining Co., 125 Ga. 319 ( 54 S.E. 177); Lufburrow v. Henderson, 30 Ga. 482. There was no demurrer to the affidavit of illegality as amended, and no exception is before us here to the allowance of the amendment. The court's ruling sustaining the special demurrers to the original affidavit of illegality was conditional; that is, the special demurrers were to be sustained unless the defendant amended to comply with the court's order to particularize the items of costs involved in fulfilling the outstanding contracts. The defendant complied with the court's order. There was no ruling on the general demurrer by the court. Under these circumstances the pleadings stood as though no demurrer had been filed, and while the court's ruling on the special demurrers did not establish as the law of the case, that the affidavit of illegality set forth a cause of action, as the defendant contends, the defendant was entitled to prove his case as laid. Kelly v. Strouse, 116 Ga. 872 (2) ( 43 S.E. 280); Cook County v. Thornhill Wagon Co., 189 Ga. 360 ( 5 S.E.2d, 881); Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385). It follows that the court erred in excluding the evidence specified in grounds 1 and 2 of the motion for a new trial, as this evidence, had it been admitted would have tended to support the allegations of the defendant's affidavit of illegality as amended. This error in excluding this evidence rendered the further proceedings nugatory.

Judgment reversed. Gardner and Townsend, JJ., concur.