Cobb v. Florence , 38 Ga. App. 95 ( 1928 )

Ltjke, J.

1. Where a promissory note provided that it should be paid off at the rate of ten dollars per week, and that on failure to comply with its terms all should become due and payable, the addition of the words “without offset or defalcation” did not preclude the maker from pleading a total failure of consideration because of an express warranty of the value of the thing for which the note was given.

(a) The evidence was in conflict, and the jury had the right to return a verdict which in effect sustained the plea of total failure of consideration.

2. The ruling of the court upon the oral motion to strike the plea of the defendant -was not excepted to pendente lite and can not be the basis of a ground in a motion for a new trial.

(a) The rulings as to the admissibility of the evidence offered to sustain the plea were not erroneous.

3. The charge of the court was full and fair and was not subject to the criticisms urged against the excerpts complained of.

(«) For no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.