Altman v. Moses , 73 Ga. App. 505 ( 1946 )

1. A plea and answer that fails to set out a valid defense may be stricken on oral motion, which is in the nature of a general demurrer.

(a) While such oral motion to strike admits all facts properly pleaded in the plea and answer, it does not admit a fraud charged, except as the facts set out establish or constitute fraud.

(b) It was not a valid defense to a suit on a check, given pursuant to the provisions of a written agreement, that the defendant was induced to sign the agreement by false representations orally made by the plaintiff, but not contained in the agreement, as to the amount of meats, groceries, and equipment in the premises at the time the agreement and check were signed, where the agreement provides that it is in lieu of all prior agreements and that the defendant is "accepting the premises and contents . . as the same now is."

(c) The written agreement of the defendant, "accepting the premises and contents . . as the same now is," meant that the defendant was accepting the premises and contents in their then physical condition and without warranty as to the quantity or amount of such contents.

2. The defendant's plea and answer having been properly stricken on oral motion, and the plaintiff having introduced in evidence the check sued on and the agreement under which it was given, a verdict in favor of the plaintiff was demanded as a matter of law, and the court did not err in directing a verdict accordingly.

3. The evidence demanded the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.

DECIDED FEBRUARY 26, 1946. Samuel T. Moses sued E. C. Altman on a check for $915, given to the plaintiff by the defendant, after payment of the same had been refused by the bank on which it was drawn. The plaintiff attached to his petition a copy of the check and a copy of an agreement executed simultaneously with the check, which agreement provided in part, as follows: "Received of E. C. Altman check for $915 in full of refund for payment made by me on purchase-price of house and lot in Waycross, Georgia, known as 514 Oak Street and cafeteria and grocery store located therein. This agreement is to cover and to settle all differences between Samuel T. Moses and E. C. Altman in connection with the former agreement to purchase said property, said agreement being this day completely and finally rescinded by both parties thereto. The undersigned Samuel T. Moses is this day vacating the premises, and the undersigned E. C. Altman is this day accepting the premises and contents thereof as the same now is. This agreement is in lieu of all prior agreements." This writing was signed by both parties.

The defendant answered, admitting the execution and delivery of the check and agreement, and set out that they had been executed under the following circumstances: On or about April 20, 1945, he had given the plaintiff an option to purchase his restaurant, store, equipment, groceries, meats, and dwelling for the sum of $12,000. The plaintiff paid $1215 on the option, and was to pay the remainder of $1785 on the option and the remainder of the purchase-price on May 28, 1945. The defendant arrived in Way-cross from Atlanta, where he had been confined in a hospital for heart trouble, on May 27, 1945. On May 28, 1945, his daughter drove him to a lawyer's office, where the sale was to be closed; the plaintiff at that time stated that he could not pay the remainder due, and the attorney for the plaintiff suggested that, since the plaintiff could not pay for the property, "the parties had better call the deal off." The plaintiff asked the defendant if he was going to give him any part of the money that he had paid on the option, and he told the plaintiff that he would not, but later told the plaintiff that he would pay him $915 back, provided the property had not been damaged and there was the same amount of groceries and meats in the place of business as was there when the plaintiff went into possession under his option. "Defendant told plaintiff that he would rather not seek to adjust this matter until he was able to go on the premises and take an inventory to ascertain what was on hand. At this time defendant was in much pain, was weak, and it was necessary on account of his physical condition that he return to his home as soon as possible and go to bed. Plaintiff told the defendant that he was in a hurry and wanted to close out the matter at once, and at this time made the following representations to him: ``That there were as many groceries and meats and other merchandise, if not more, in the place of business now as were at the time he first took charge.'. . Within two weeks, when he took an inventory of the business, he found there was $425 less meat, $450 less groceries, and $115 less sheets, blankets, and bed clothing on hand than when the plaintiff went into possession, besides $25 less change in the cash drawer, and a telephone bill of $28 the plaintiff had charged to defendant, and which the defendant had to pay, making a total of $1043 less in the stock of goods than was there when the plaintiff went into possession." The representations made by the plaintiff were false and were made by the plaintiff with the intent that the defendant should act upon them, and were made in such a manner as to mislead and deceive the defendant and did mislead and deceive him to his injury. The check sued on and the agreement attached to the plaintiff's petition were signed by the defendant relying on the representations above set out; and the check and agreement were obtained through fraud and were void. The prayers of the answer were that the check and agreement be cancelled, and that the defendant have judgment against the plaintiff for $1043.

On the trial, before the introduction of any evidence, the plaintiff by oral motion moved the court to strike and dismiss the plea and answer of the defendant on the ground that it set forth no valid defense to the written agreement, which the defendant admitted signing, and the defendant did not allege that he signed under such an emergency as would prevent him from knowing the contents of the paper. The trial judge sustained the motion and dismissed the plea and answer. To this ruling the defendant excepted pendente lite and assigned error thereon in the bill of exceptions.

The case proceeded to trial. The plaintiff introduced in evidence the check and agreement signed by the defendant, and rested. Whereupon, the court directed a verdict for the plaintiff for the amount sued for, and a judgment was duly entered on this verdict.

The defendant's motion for a new trial was overruled, and the exception here is to that judgment and to the judgment dismissing the plea and answer. 1. The defendant contends that the court erred in sustaining the oral motion in the nature of a general demurrer and in striking his plea and answer. A defect apparent on the face of the pleadings may be taken advantage of by motion (Code, § 81-302); and where the defect in a pleading is fatal, it may be taken advantage of by an oral motion in the nature of a general demurrer, which motion may be made at any time before verdict. Royal InsuranceCo. v. Oliver, 50 Ga. App. 327 (2) (177 S.E. 922); Meads v. Williams, 55 Ga. App. 224 (189 S.E. 718); Elbert County v. Brown, 16 Ga. App. 834 (86 S.E. 651); Livingston v.King, 2 Ga. App. 178 (58 S.E. 395); Dingfelder v. GeorgiaPeach Growers Exchange, 184 Ga. 569 (192 S.E. 188). While such oral motion admits all the facts properly alleged in the pleading to which it is directed, it does not admit a fraud charged, except as the facts alleged establish or constitute fraud. Miller v. Butler, 121 Ga. 758 (49 S.E. 754). If any portion of the plea is good, it is error to sustain an oral motion and dismiss it (Quinney v. Citizens Bank ofWaynesboro, 19 Ga. App. 49. 90 S.E. 1027); but where the plea and answer do not set out any legal defense to the plaintiff's suit, it is not error to strike it on oral motion. Sloan v.Farmers Merchants Bank, 20 Ga. App. 123 (92 S.E. 893). In the present case, there is no allegation in the plea and answer that the defendant did not read and fully understand the nature and contents of the instruments which he signed. While it is alleged that the defendant had been sick and was in pain at the time he signed the instruments, and that the plaintiff said he was in a hurry to close out the matter, it is not alleged that the defendant was physically or mentally incapable of transacting business, or that he did not fully understand the nature and consequences of his acts in signing the check and agreement, or that any emergency existed which prevented him from making such inquiry or investigation as he desired before signing the check and agreement, the terms of which were plain and unambiguous. That the plaintiff said he was in a hurry to close out the matter, did not create such an emergency. Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788). The use of the expression, "as the same now is," in the agreement meant that the plaintiff was surrendering and the defendant was accepting the premises and contents in their then physical condition and without warranty as to the quantity or amount of such contents. There is no allegation that any trick or artifice was employed by the plaintiff to induce the defendant to execute the agreement, or that the plaintiff did not carry out the agreement and surrender possession of the premises and contents to the defendant in the condition in which they were at the time the agreement was executed; but the fraud charged by the plea and answer is that the plaintiff, prior to the execution of the written agreement and as a part of the negotiations leading up to its execution, made false representations to the defendant as to the amount of meats, groceries, and equipment on hand, to induce the defendant to sign the agreement, and that the defendant relied on these false representations and signed the agreement. The agreement expressly provided that it "was in lieu of all prior agreements," and that the defendant was accepting the premises and contents as they then existed; and, as above stated, there are no allegations in the plea and answer that the defendant was misled or deceived in any manner as to the terms of the agreement or that he did not fully understand its nature and provisions before signing it. The agreement was valid and binding on the parties, and it was not a legal defense to the action on the check, given pursuant to the agreement, that the defendant was induced to sign the agreement by false representations made by the plaintiff, but not contained in the writing, as to the amount of meats, groceries, and equipment on hand at the time the agreement and check were executed.Equitable Manufacturing Co. v. Biggers, 121 Ga. 381 (49 S.E. 271). Also see Outlaw v. Park Live Stock Company, 20 Ga. App. 776 (93 S.E. 310); Washington Lincolnton R. Co. v.Southern Iron c. Co., 28 Ga. App. 684 (112 S.E. 905). No valid defense to the suit was set out in the plea and answer, and therefore the court did not err in sustaining the oral motion and in dismissing the plea and answer.

2. The defendant's plea and answer having been stricken on oral motion in the nature of a general demurrer, and the plaintiff having placed in evidence the check and agreement, the verdict in favor of the plaintiff was demanded, and the court did not err in directing a verdict accordingly. Browning v.Farmers Bank, 45 Ga. App. 469 (165 S.E. 130); Fuller v.Watkins, 38 Ga. App. 172 (143 S.E. 510); Haley v. Block, 20, Ga. App. 528 (93 S.E. 148).

The cases cited and relied on by the plaintiff in error do not require a ruling contrary to the one here made. Hinkle v.Hixon, 154 Ga. 193 (113 S.E. 805), was before the Supreme Court again in Hixon, v. Hinkle, 156 Ga. 341 (118 S.E. 874), and in Hinkle v. Hixon, 163 Ga. 430 (136 S.E. 280), and as disclosed by the decisions in those cases, certain officers of a corporation and another had confederated and conspired with the company to defraud the plaintiff, by such officers falsely representing that they owned 999 shares of stock in the company and agreeing to pledge 200 of those shares as consideration for a loan; and the court held that, when the lender afterwards discovered that the officers did not own the stock which they had pledged, but that the stock belonged to another for whom they were acting as agents, the lender could show by parole that the contract was procured by fraud. In that case, the lender was not to have just any 200 shares of stock in the company, but was to have that number out of the 999 shares which the borrowers falsely represented that they owned, and therefore the lender did not get what he had bargained for when he received 200 shares of stock belonging to another as collateral for the loan; while, in the present case, it was not alleged that the defendant did not receive exactly what the written contract provided that he was to get. In Williams v. Toomey, 173 Ga. 199 (159 S.E. 866), the defendant falsely represented that the basement of a house was waterproof and dry at all times and free from dampness, and, by emptying the water from the basement and drying the floor immediately before the plaintiff came to inspect the house, made it impossible for the plaintiff, by a reasonable inspection, to ascertain the true character of the basement; while, in the present case, it is not alleged that the defendant made any investigation, or that he did not receive exactly what the written agreement provided that he was to get — the premises and contents as they existed at the time the agreement was signed. InHam v. Parkerson, 68 Ga. 830, there was a mutual mistake on the part of a defendant in fi. fa. and a constable taking a bond for certain property, which had been levied on, as to the contents of the paper signed by the defendant in fi. fa. without its having been read by him or the constable; while, in the present case, it is not contended that the defendant was mistaken or deceived as to the contents of the paper which he signed. The other cases relied on by the plaintiff in error are likewise distinguishable on their facts from the present case and do not require a ruling different from the one made here.

3. The pleadings and evidence demanded the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.