Opinion
33686, 33687.
DECIDED OCTOBER 4, 1951. REHEARING DENIED NOVEMBER 19, 1951.
Complaint on contract; from Cairo City Court — Judge Worthy. May 7, 1951.
L. H. Foster, Cain Smith, for plaintiff in error.
Jesse J. Gainey, James T. Gainey, contra.
1. Under the decision of Love v. Nixon, 82 Ga. App. 445 ( 61 S.E.2d, 423), the allegations of the answer in this case are insufficient upon which to base a defense on the ground of fraud in the procurement of the contract upon which the suit is founded.
2. It was not error here for the trial court to strike that part of the answer which denied the allegation in the petition "that the defendant has breached said contract and has refused to take said grapevines and pay for them", since this denial was obviously made in connection with other insufficient allegations seeking to show that the contract was executed by the defendant but that since it was procured by fraud his admitted refusal to take the grapevines and pay for them did not constitute a breach.
3. It is error to strike an entire plea or answer which, although deficient in every other respect, presents one substantial issue. Where, as here, the plaintiff alleges that he has retained the commodity purchased for the defendant and sets out a measure of damages pertinent to this state of facts, the defendant may properly deny that the commodity has been so stored for his benefit and offer evidence under such denial for the purpose of showing that the damages claimed are excessive.
DECIDED OCTOBER 4, 1951. REHEARING DENIED NOVEMBER 19, 1951.
On March 2, 1948, E. L. Love, doing business as Love Orchard and Vineyard Development Company, filed suit in the City Court of Cairo against W. B. Hester in the sum of $400 based, on a written contract for the purchase of grapevines executed by the defendant. The allegations of the petition and the contract upon which this action is based are, for the purpose of this investigation, identical with those set out in the statement of facts in Love v. Nixon, 82 Ga. App. 445 (supra). Paragraph 4 of the petition in which it is alleged that the defendant has breached the contract and has refused to take said grapevines and pay for them and paragraph 5 thereof wherein it is alleged that the plaintiff has retained said grapevines for the defendant and is now entitled to recover from the defendant the purchase price of $400 are denied by the answer, which was filed on April 2, 1948. The answer then continues by setting up facts by which the defendant seeks to show that the contract was procured by fraud based on substantially the same grounds as the acts of alleged fraud set forth in the answer of the defendant in Love v. Nixon, supra. Thereafter on July 13, 1948, the defendant amended the answer by alleging more in detail the acts of alleged fraud by which he contends the contract was procured, and a second amendment in which he alleges that he did not know of the falsity of said representations made by the plaintiff at the time of making the contract and that upon discovery thereof but before the time for the delivery of the grapevines he notified the plaintiff that he would not accept the plants. The defendant interposed a demurrer to the petition as thus amended substantially on the same grounds as the demurrer set forth in Love v. Nixon, supra. The trial court on July 13 entered judgment overruling the demurrer on each and all the grounds thereof and exceptions to this judgment were duly preserved pendente lite by the plaintiff. On January 9 and 20, 1951, the defendant filed two new amendments to his answer wherein he details other acts of alleged fraud in the procurement of the contract, following which the plaintiff renewed his original demurrers to the original answer and to the entire answer as finally amended, which grounds of demurrer are substantially the same as those previously insisted upon. On the date last mentioned the trial court entered judgment sustaining the demurrer on each and every ground thereof and striking the entire answer as finally amended.
On this judgment error is assigned in the main bill of exceptions by the defendant, and to the first judgment overruling the demurrer as interposed to the answer before final amendment, which judgment was dated July 19, 1948, error is assigned by the plaintiff.
1. Considering the judgment excepted to in the main bill of exceptions by which the answer as finally amended was stricken, our judgment is controlled by that of this court in Love v. Nixon, supra, as to all allegations contained in the answer and all amendments thereto relating to the procurement of the contract by alleged fraud. Although the allegations of fraud here are set forth more in detail and some of the allegations are not specifically contained in Love v. Nixon, supra, there are nevertheless no allegations of fraud in the procurement of this contract that, tested by the decision of this court in the Nixon case, can be held to be sufficient to vitiate the contract. The judgment of the trial court sustaining the demurrer to those allegations of the answer by which it is sought to show that the contract was procured by fraud is without error.
2. The answer denied paragraph 4 of the petition in which it is alleged that the defendant breached said contract and refused to take said grapevines and pay for them. However, in the same answer the defendant admitted the execution of the contract and then therein, and thereafter in all amendments, contends that the contract was procured by fraud; that therefore he was justified in refusing to accept the vines and refusing to make payment therefor, and that this refusal does not constitute a breach of his contract. This denial therefore must be construed to be limited to this position of the defendant and not taken as a denial that he refused to take and pay for the grapevines, as this latter fact is admitted throughout the answer and amendments thereto, but sought to be justified on the ground that the contract was void because procured by fraud. Where a plea both admits and denies the execution of a contract which binds the pleader, the admission and not the denial must prevail. City of Moultrie v. Schofield's Sons Co., 6 Ga. App. 464 ( 65 S.E. 315). The trial court properly construed this denial in connection with the allegations of fraud in the procurement of the contract and his judgment striking this portion of the answer is without error, since, as herein pointed out and as decided by this court in the Nixon case, the allegations of fraud were insufficient to constitute a valid defense to the action.
3. The answer denies the allegation of the petition that the plaintiff "has retained said grapevines for defendant and is now entitled to recover from defendant the purchase price of same in the sum of $400" and, by amendment, further alleges that the plaintiff did not retain the vines but on the contrary threw them in a ditch and abandoned them, so that they died immediately thereafter. In a suit of this kind the plaintiff may elect to retain the goods and recover the difference between the contract and market price at the time and place of delivery; he may sell the property and recover the difference between the contract price and price of resale, or he may retain the property for the vendee and sue him for the entire price. Code § 96-113.
The measure of damages, and often the amount of damages, will vary with his election, and the defendant has a right to deny this and prove that the measure of damages sued for is not correct under the evidence. However, the entire answer having been stricken, the defendant is legally in default. Pierce v. Jones, 36 Ga. App. 562 (3) ( 137 S.E. 296). In such case he is precluded from offering evidence to prove that the measure of damages elected by the plaintiff is erroneous. Cooper v. Brock, 77 Ga. App. 152 (1) ( 48 S.E.2d 156). His denial that the plaintiff stored the commodity purchased for his benefit is thus a substantial issue in the case, and it is error to strike a plea which, though defective in other respects, properly presents a substantial issue. Hicks v. Hamilton, 3 Ga. App. 112 (2) ( 59 S.E. 331). With the exception of that part of paragraph 1 of the answer, and paragraph (f) of the amendment of January 9, the amended answer offers no defense to the plaintiff's petition. The trial court erred, however, in striking the entire answer, which did contain one denial as to a substantial issue in the case.
Judgment reversed on the main bill of exceptions. Judgment reversed in part and affirmed in part on the cross-bill of exceptions. MacIntyre, P.J., and Gardner, J. concur.