Cook v. Cobb & Roper

95 S.E. 1022, 22 Ga. App. 328, 1918 Ga. App. LEXIS 327

• Court: Court of Appeals of Georgia
• Decided: May 15, 1918
• Docket: 9371
• Status: Published

Opinion

Harwell, J.

(After stating the foregoing facts.) The general denial that the defendant was indebted set up no defense. Civil Code of 1910, § 3300; Woods v. Roberts, 97 Ga. 254 (22 S. E. 986); Woods v. Almand, 97 Ga. 255 (22 S. E. 982). The remainder of the affidavit of illegality attempts to set up as a defense a breach of an express warranty. The express warranty was that the plaintiffs warranted or guaranteed the automobile to run perfectly for a period of eight months; and that they further guaranteed to replace all broken and defective parts of said automobile for a period of eight months. It nowhere appears in the affidavit of illegality that the defects complained of- occurred during the eight months period covered by the warranty. It does not appear that the automobile did not run perfectly during that eight months. It does not appear when these alleged defects occurred. It does not appear tha-t the refusal to replace any defective parts occurred during this eight-months period. In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may avail himself of the ^defense, of recoupment. Arnold v. Carter, 125 Ga. 319 (54 S. E. 177). “The plea of recoupment being a cross-action by the defendant against the plaintiff, its allegations as to damages must be as specific and certain as if made in a petition.” Whitt v. Blount, 124 Ga. 671 (53 S. E. 205); Beck Duplicator Co. v. Fulghum, 118 Ga. 836 (45 S. E. 675); Atlanta Glass Co. v. Noizet, 88 Ga. 43 (13 S. E. 833). The burden is upon the mortgagor or affiant of establishing the allegations of fact in the nature of an affirmative defense. Civil Code of 1910, § 3302; Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). The plea of recoupment must therefore set up all the facts necessary to make out a complete defense, just as if it were a petition or declaration. The express warranty, where that is relied upon, must be alleged and a breach thereof shown, and damage to the' defendant. Moulton v. Baer, 78 Ga. 215 (2 S. E. 471). It should also appear that the express warranty was a part of the consideration of his purchase. -We do not think that the affidavit of illegality measures up to the requirement of the law, in that it does not show a breach of the warranty that the automobile would run perfectly for a period of eight months and that the plaintiffs would replace all 'broken and defective parts for the period of eight months. It does not clearly appear that the alleged warranty was made at the time of the purchase, and was part consideration of the purchase. Eor these reasons we think that th'e court did not err in striking the affidavit of illegality, and permitting verdict and judgment to be entered in favor of the plaintiffs.

Judgment affirmed.

Broyles, P. J., and Bloodyjorih, J., concur.