Justus v. Ramey , 37 Ga. App. 792 ( 1928 )

Stephens, J.

1. The bill of exceptions properly assigns error upon exceptions pendente lite and upon the order overruling the motion for a new trial. There is no merit in the motion to dismiss the writ of error.

2. A plea to a suit upon a promissory note, which alleges that the note was given for the purchase-money of land, and that the payee of the note, who was the seller, refused to make to the defendant, the purchaser, a deed of conveyance to the land, but which does not allege that the defendant tendered performance by offering to pay the note, sets up no defense.

3. In a suit upon a promissory note, where the defendant pleads as a set-off certain other notes at their face value, payable to the defendant as. the payee and by third persons as makers, which the defendant alleges he had entrusted to the plaintiff for the purpose of collection, and which, he alleges, the plaintiff, by a failure to deliver them to the defendant on demand or to otherwise account for them, converted to his own use, the plea alleges a breach of contract by the plaintiff in the amount represented by the face value of the notes, which alleged breach of contract could be set-off against the plaintiff’s suit, which is upon a cause of action ex contractu.

4. The judge erred in striking the defendant’s plea and directing a verdict for the plaintiff.

Judgment reversed.

Jenhins, P. J., and Bell, J., coneur.