Anchor Sign Co. of Georgia, Inc. v. PS Heating & Air Conditioning Co.

186 S.E.2d 892, 125 Ga. App. 207, 1971 Ga. App. LEXIS 782

• Court: Court of Appeals of Georgia
• Decided: November 11, 1971
• Docket: 46509
• Status: Published

Opinions

Quillian, Judge.

This appeal is from the direction of a verdict for the plaintiff in a jury trial in the Civil Court of Fulton County.

PS Heating & Air Conditioning Co., filed an action on open account against Anchor Sign Company of Georgia, Inc., alleging a balance due of $1,073 on a contract whereby a heating and air-conditioning unit was to have been installed by the plaintiff in the defendant’s place of business.

The original cost of the entire job was $2,146, and one-half ($1,073) was paid leaving a balance owing of $1,073.

Defendant admitted that such a contract had been entered into, but defended on the ground that there had been a failure of consideration on the part of the plaintiff, in that the air-conditioning unit had never been installed correctly and had never operated properly.

Upon the trial of the case, the defendant admitted a prima facie case, admitting that the contract had been entered into and assumed the burden of proof of failure of consideration. At the close of the defendant’s evidence, the trial court granted a motion for directed verdict on the part of the plaintiff. Held:

The evidence showed that there had not been a total failure of consideration because the defendant had attained a benefit from the use of the air-conditioning unit. Therefore the defendant’s only defense would have been a partial failure of consideration.

Submitted September 14, 1971 Decided November 11, 1971 Rehearing denied December 15, 1971 Peek, Whaley & Haldi, Glenville Haldi, for appellant. Cotton, Katz & White, Richard A. Katz, for appellee.

The general rule of law applicable to proof of partial failure of consideration is contained in Code §20-310. The proof offered must substantiate to what extent the consideration has failed so that it would be possible for the jury or for the court to determine the extent of failure of consideration. Absent such proof, the defense of partial failure of consideration must fall. Moore v. Smith, 31 Ga. App. 491 (121 SE 136); Hall v. Southern Sales Co., 81 Ga. App. 392 (2) (58 SE2d 925); Andrews v. Bickerstaff, 93 Ga. App. 571 (92 SE2d 257).

While there was testimony that the defendant paid a repair bill of $22.50, this would not be sufficient data from which the true value could be established. See Stanfield v. Pettibone Mulliken Corp., 122 Ga. App. 426 (177 SE2d 261). Upon the evidence submitted, the jury would not be able to determine, with any degree of certainty, the extent of the failure of consideration.

The defendant having failed to make out the defense of a partial failure of consideration, the direction of the verdict was- not error.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt and Pannell, JJ., concur. Deen and Evans, JJ., dissent. Whitman, J., not participating.