Culver v. Wood , 1912 Ga. LEXIS 187 ( 1912 )

Hill, J.

(After stating the foregoing facts.)

1. The court did not commit error in striking the plea of usury. As filed, the jury could not find what amount was or was not usury. Our code declares that “The plea of usury must set forth the sum upon which it was paid, or to. be paid, the time when the contract was made, when payable, and the amount of usury agreed upon, taken or reserved.” Civil Code (1910), § 5674. This plain requirement was not met by defendants’ plea, and therefore it was properly stricken on motion. Burnett v. Davis, 124 Ga. 541 (52 S. E. 927).

2. In order for a defendant to be entitled to the opening and conclusion of argument, he must admit enough in his pleadings, before the plaintiff begins to introduce testimony, to make out a prima facie case for the plaintiff. Reid v. Sewell, 111 Ga. 880 (2) (36 S. E. 937); Mitchem v. Allen, 128 Ga. 407 (1) (57 S. E. 721). The defendants’ pleadings in this case did not admit enough to make out a prima facie case for the plaintiffs. The pleadings admitted merely “the execution of said mortgages, and title to them as being in plaintiffs.” Under the decisions cited above, oral admissions are not sufficient. The mortgage notes foreclosed were not given for any definite amount which could be admitted as appearing upon their face, but were given to secure the payment of several prior unpaid notes, “and any other indebtedness to J. S. Wood & Brother/’ and also “to secure any other indebtedness existing, or hereafter created, whether on open account or notes (or joint notes with others), as well as security debts, as debts of my own and any renewal o.f any' indebtedness hereby secured,” etc. These mortgages were given, it seems, not only to secure past indebtedness, but to secure advances and supplies furnished during the current year in which they were made, to enable defendants to make a crop for that year; and the amounts of the supplies were evidenced by “open account,” which the mortgages were given in part to secure. In order to make out his case plaintiff testified that “I know that they [defendants] owe me $750, because it is made up in this statement: 18 tons of guano,” etc. It will be seen, therefore, that the defendants did not admit enough to entitle them to the opening and conclusion of the argument, because the admission that they executed the mortgages and that, the title to them was in the plaintiffs would not, without more, entitle the plaintiffs to a verdict for $750 principal sued for, or any other specific amount. The court did not err in not allowing the defendants under their pleadings to open and conclude. Besides, as the court directed a verdict for the plaintiffs, there was no opening and conclusion.' The defendants did not admit owing any definite sum, nor did they admit a complete ease by their pleadings, and they could not mend this by oral admission.

3. W. L. Culver, in his affidavit of illegality, pleads a set-off against plaintiffs’ demands, for certain improvements alleged to have been made on the rented land by express direction of the plaintiffs, with the promise to pay.him for the same, which consisted of the building of one barn, two sheds to tenant houses, and three brick chimneys, ceiling two rooms in the dwelling-house, covering the dwelling-house, digging one well, etc., all of the value of $580. In the case of Arnold v. Carter, 125 Ga. 319 (54 S. E. 177), this court held: “In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may avail himself of the defense of recoupment, but he can not plead set off in such a proceeding.” See pp. 321-325 of the report just cited, for a full discussion of what defenses can be filed to affidavits of illegality. In view of the exhaustive discussion of this question in that case, a further elaboration of this point is unnecessary.

4. Complaint is made that the court erred in directing a verdict for tlie plaintiffs. The Civil Code of 1910, § 5926, provides: “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” Green v. Scurry, 134 Ga. 482 (68 S. E. 77). While the evidence in the case was abundant to support a verdict in favor of the plaintiffs, there is some conflict in the evidence, and we think the court erred in directing a verdict for the plaintiffs. J. S. Wood, one of the plaintiffs, testified that the debt due was that of the wife, Mrs. D. P. Culver, who was the tenant of J. S. Wood & Bro., while W. L. Culver, the husband of D.' P. Culver, testified that the debt sued for was contracted by him individually, and was not the debt of his wife, that his wife did not sign the notes, and that the contract of rental was with him, and all the goods furnished to him. There was other conflicting testimony, which we think was sufficient to carry the case to the jury.

5. As the questions here decided are controlling, the other grounds of the motion need not be considered.

Judgment reversed.

All the Justices concur.