DocketNumber: 16055
Citation Numbers: 34 Ga. App. 392
Judges: Stephens
Filed Date: 9/17/1925
Status: Precedential
Modified Date: 1/12/2023
1. Where two persons enter into a contract for the purchase and sale of real estate, in which it is stipulated that the purchaser is to pay $500 as earnest money, and where it is subsequently agreed that the seller will accept in lieu of the earnest money the
2. A subsequent suit upon the note, by the payee, would as to him conclusively show his acceptance of the note, notwithstanding the failure of the defendant to procure its indorsement by another as indicated; and the payee, having accepted the note, would not be justified in selling the property to another, and such sale by him would constitute a breach of the contract to sell the property to the wife of the maker of the note, and such breach of contract would constitute a failure of consideration of the note.
3. Where, to a suit upon such note by the payee thereof, the defendant pleaded the above-stated facts, the plea set forth a valid defense, and it was error to strike the plea, upon a motion in the nature of a general demurrer.
4. The judge of the municipal court erred ill striking the plea, and the superior court erred in overruling the certiorari excepting to that
judgment.
Judgment reversed.