Opinion
35761.
DECIDED JULY 15, 1955.
Action on notes. Before Judge McWhorter, presiding. Chatham Superior Court. April 1, 1955.
Gilbert E. Johnson, Oscar C. Burnett, Jr., for plaintiff in error.
I. Clinton Helmly, Jr., contra.
The verdict being demanded by the evidence, the trial court did not err in directing a verdict for the plaintiff.
DECIDED JULY 15, 1955.
Dolvin Dunn brought an action against A. H. Clifton in the Superior Court of Chatham County for a deficiency judgment on a series of notes executed by the defendant to the plaintiff in which as additional security the defendant had executed a bill of sale to secure debt to a barbecue business located near Savannah, Georgia. The defendant in his answer admitted executing the notes but denied that he had defaulted in the payments due under the notes. The plaintiff alleged that foreclosure proceedings were instituted, the defendant was served with notice thereof, and the notice of sale was regularly advertised. The defendant denied these allegations and, for a want of sufficient information, stated that he could not answer the allegation that the property conveyed by him in the bill of sale to secure debt was regularly sold at the courthouse door by the sheriff to the highest bidder on the first Tuesday in June, 1951. The defendant also denied the allegation that he was indebted to the plaintiff in the sum of $1,103.15, the balance due after the proceeds of the alleged sheriff's sale were credited towards the payment of the notes. For further plea and answer the defendant set out that the property covered by the bill of sale to secure debt was sold to him by the plaintiff, and that the sale was fraudulently induced, and he alleged specific acts of fraud on the part of the plaintiff, one of which was that the plaintiff did not own a part of the fixtures located within the business and that the owners made demand on the defendant after he took possession of the property from the plaintiff. He further alleged that the plaintiff came into the place of business and threatened to inflict violence upon some of the patrons, thereby reducing the value of the business so as to make it unprofitable as a business or venture; that the defendant then returned the business to the plaintiff within a few days after purchasing it and the plaintiff began operating it, thus destroying the defendant's obligation to the plaintiff; and that the plaintiff was paid $500 by the defendant so that when the defendant rescinded the sale as shown, the plaintiff gained $500 and all of the property sold to the defendant, and the defendant lost said $500. The defendant amended his answer by adding the following: On or about April 20, 1951, the plaintiff instituted foreclosure proceedings under the bill of sale to secure debt and, after a levy was made on the property, the plaintiff gave bond and took possession of the property. After taking the property, the plaintiff converted it to his own use and used it in carrying on the barbecue business. By taking the property and using it some of it was destroyed, and its use constitutes a legal retaking and conversion of the property and constitutes a rescission of the contract made between the parties, thereby destroying the debt on which the action was based. On the trial of the case, after the evidence was closed, the trial court granted a motion made by the plaintiff for a directed verdict, and it is to this judgment that the defendant excepts stating that it is contrary to law because there was evidence on which the issue should have been submitted to a jury.
The defendant admitted signing the notes, and there was no conflict in the evidence as to the amount paid by the defendant and the amount received by the plaintiff as the result of the sale of the business by the sheriff; therefore the only question is whether the evidence produced on the trial demanded the verdict directed by the trial court.
The defendant testified that he had purchased the property and operated it for ten or eleven days, that within three or four days after he began operating the business certain persons began to claim some of the property which was sold to him by the plaintiff, that the articles claimed were valuable, and that because the plaintiff had included them in the sale of the business the defendant was fraudulently induced to purchase the business. He further testified that on March 31, 1951, which was the tenth or eleventh day that he operated the business, he made a payment of $250 in accordance with the terms of the notes. And on that same day, after he had made the payment, he learned that the plaintiff had fraudulently induced him to purchase the business by including in the sale property that the plaintiff did not own, and immediately upon finding out about this fraud he rescinded the contract of purchase.
"The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague or equivocal." Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (1) ( 51 S.E. 438); Shepard v. Chappell, 29 Ga. App. 6 ( 113 S.E. 23). Accordingly, the testimony of the defendant must be construed to mean that within three or four days after he took over the business he learned of the fraud complained of and on the tenth or eleventh day he made a payment in accordance with the contract, and then, when he learned of the fraud, attempted to rescind the contract after affirming it by making a payment on one of the notes. Where a person after knowledge of a fraud continues to make payments under a contract instead of rescinding it, such action amounts to a waiver of the fraud and an affirmance of the contract. Tuttle v. Stovall, 134 Ga. 325 ( 67 S.E. 806, 20 Ann. Cas. 168). Therefore, in the present case where the purchaser knew of the fraud and continued to pay on the notes his action amounted to an affirmance of the contract.
The defendant argues that the sale by the sheriff of the property in question was void because the record of the foreclosure proceeding did not have an entry that the levy was made and also that the plaintiff had gone into possession of the property by posting a forthcoming bond before it was sold by the sheriff. The defendant in his answer stated that a levy was made on the property, and on the trial of the case testified that he was served by the sheriff. Under the ruling of the Supreme Court in Bank of Forsyth v. Gammage, 109 Ga. 220 ( 34 S.E. 307), the defendant was concluded from setting up any defense which he could have set up during the foreclosure proceedings.
The trial court did not err in directing a verdict for the plaintiff.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.