Smith v. Cauley

140 S.E.2d 527, 111 Ga. App. 62, 1965 Ga. App. LEXIS 880

Opinion

Ererhardt, Judge.

Plaintiff sued in the justice of peace court on a note and conditional sale contract for a used car. Defendant filed a general denial and pleaded a failure of consideration. The justice of the peace found for the plaintiff and the defendant appealed to the superior court. On motion, the judge struck the original answer with leave to amend. An amendment to the. answer attempted to raise the issues of fraud in inducing the execution of the contract and note, and accord and satisfaction. The judge again struck the answer on motion and entered a judgment for plaintiff. Defendant excepts. Held:

Decided January 25, 1965. Rollin A. Stanley, Al Hatcher, for plaintiff in error. Jones & Douglas, Dubignion Douglas, contra.

The allegations of fraud are defective in the essential particular of knowledge by the plaintiff and his agents of the falsity of the representation. Hewlett v. Moore, 102 Ga. App. 506 (116 SE2d 660); American Service Co. v. Berry, 108 Ga. App. 413 (133 SE2d 433). See Alpha Kappa Psi Bldg. Corp. v. Kennedy, 90 Ga. App. 587, 591 (83 SE2d 580).

The accord and satisfaction portion of the amendment set out that “this defendant returned said property to the plaintiff and he accepted the same.” This is not enough to set out an accord and satisfaction, which must “allege facts sufficient to put the plaintiff on notice of the exact terms of the agreement.” Allen v. Reed, 93 Ga. App. 215 (1) (91 SE2d 308). Accord: Nance v. Winship Mach. Co., 94 Ga. 649 (3) (21 SE 901).

Therefore, the trial judge properly struck the amendment because none of it was legally sufficient.

Judgment affirmed.

Nichols, P. J., and Pannell, J., concur.