Pitts Shoe Co. v. Stein

103 S.E. 415, 25 Ga. App. 162, 1920 Ga. App. LEXIS 660

Opinion

Smith, J.

1. The court properly overruled the demurrers to the answer of the defendant, as the answer is not subject to the criticisms made by either the general demurrer or the special demurrers.

2. While a plea of total failure of consideration includes partial failure of consideration, paragraph 4 of the answer in this case was in fact a plea of partial failure of consideration, and there was evidence introduced showing the extent to which the consideration had failed. “ Partial payment, with knowledge of the defective condition, will not estop the buyer from pleading partial failure of consideration.” Civil Code (1910), § 4137. See also Atkins v. Cobb, 56 Ga. 86 (6); Pearson v. Brown, 105 Ga. 802 (2) (31 S. E. 746).

3. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

There was a general demurrer to the answer, and paragraph 4 was demurred to on the grounds, that it stated no fact to sustain the allegation that the shoes were not worth more than $50, and that it amounted merely to a conclusion of the pleader; that it failed to state how many pairs of shoes were received, their value, or any facts upon which a jury could legally allow a deduction from the amount of the plaintiff’s claim. Paragraph 5 was demurred to on the grounds, that it failed to show when the shoes were received, or that the defendant inspected them or made any effort to discover defects, and failed to show why the deception could not be discovered except by wearing the shoes; and that it did not appear that he made any complaint of them before October 14, 1918. Paragraphs 6 and 7 were demurred to on the grounds, that in the main they stated only conclusions of the pleader and were " only repetitions of his troubles complained of in paragraphs 4 and 5,” and' were hot sufficiently definite in particulars stated in the demurrer.

The verdict was "for the defendant.”

J. U. Merritt, W. J. Davis, Jr., for plaintiff. Clifford E. Hay, for defendant.