Babcock v. Davis Realty Co.

Court of Appeals of Georgia

Babcock v. Davis Realty Co.

225 S.E.2d 711, 138 Ga. App. 236, 1976 Ga. App. LEXIS 2119

CourtCourt of Appeals of Georgia

DecidedMarch 9, 1976

Docket51850

StatusPublished

This text of 225 S.E.2d 711 (Babcock v. Davis Realty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Babcock v. Davis Realty Co., 225 S.E.2d 711, 138 Ga. App. 236, 1976 Ga. App. LEXIS 2119 (Ga. Ct. App. 1976).

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Opinion

Webb, Judge.

Davis Realty Company brought suit against Donald Babcock on a promissory note. Babcock answered and counterclaimed, alleging that the note had been executed in connection with the purchase of a house and lot from plaintiff and that the house had certain described defects. Babcock testified, however, on deposition that he moved into the house on July 4, 1969; that the sale was subsequently closed on August 12; that he found the defects the day he moved in; and that he closed the sale on the 12th knowing of the defects. There is no allegation of fraud, which must be stated with particularity (Code Ann. § 81A-109 (b)), nor was the seller to perform work on the house after the closing. See Little v. Merck, 124 Ga. App. 73 (183 SE2d 234); Collier v. Sinkoe, 135 Ga. App. 732 (218 SE2d 910); Helmer v. Hegidio, 133 Ga. App. 168 (210 SE2d 332). Since the only defense to the suit on the note is the counterclaim alleging defects in the house, and no exception to the doctrine of caveat emptor is present, the trial court correctly struck the counterclaim and granted summary judgment to plaintiff.

Submitted March 2, 1976 Decided March 9, 1976 Rehearing denied March 25, 1976 Munday & Gammage, William D. Sparks, for appellant. Jones, Robbins & Macleod, Frank H. Jones, for appellee.

Judgment affirmed.

Deen, P. J., and Quillian, J., concur.

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Webb, Judge.

Davis Realty Company brought suit against Donald Babcock on a promissory note. Babcock answered and counterclaimed, alleging that the note had been executed in connection with the purchase of a house and lot from plaintiff and that the house had certain described defects. Babcock testified, however, on deposition that he moved into the house on July 4, 1969; that the sale was subsequently closed on August 12; that he found the defects the day he moved in; and that he closed the sale on the 12th knowing of the defects. There is no allegation of fraud, which must be stated with particularity (Code Ann. § 81A-109 (b)), nor was the seller to perform work on the house after the closing. See Little v. Merck, 124 Ga. App. 73 (183 SE2d 234); Collier v. Sinkoe, 135 Ga. App. 732 (218 SE2d 910); Helmer v. Hegidio, 133 Ga. App. 168 (210 SE2d 332). Since the only defense to the suit on the note is the counterclaim alleging defects in the house, and no exception to the doctrine of caveat emptor is present, the trial court correctly struck the counterclaim and granted summary judgment to plaintiff.

Submitted March 2, 1976 Decided March 9, 1976 Rehearing denied March 25, 1976 Munday & Gammage, William D. Sparks, for appellant. Jones, Robbins & Macleod, Frank H. Jones, for appellee.

Judgment affirmed.

Deen, P. J., and Quillian, J., concur.

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225 S.E.2d 711, 138 Ga. App. 236, 1976 Ga. App. LEXIS 2119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babcock-v-davis-realty-co-gactapp-1976.

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