Opinion
40957.
DECIDED FEBRUARY 1, 1965.
Action on contract. Fulton Civil Court. Before Judge Camp.
Parks Eisenberg, David S. Eisenberg, for plaintiff in error.
Hurt, Hill, Richardson Sosebee, Robert R. Richardson, Hugh D. Sosebee, contra.
1. Where the evidence is in conflict to the extent that a verdict and judgment would have been authorized either for the plaintiff or for the defendant, the judgment entered will not be set aside in this court solely on the general grounds of a motion for new trial. Dan E. Austin, Jr. Sons, Inc. v. Hartford Fire Ins. Co., 107 Ga. App. 553, 554 ( 130 S.E.2d 835). The above rule is effective and binding on the appellate courts in all cases including those in which the trial judge acts both as judge and jury. Carroll v. Johnson, 105 Ga. App. 541 ( 125 S.E.2d 91); Melrose Hills Mem. Park Cem., Inc. v. Norris, 100 Ga. App. 504, 506 (3) ( 111 S.E.2d 649).
2. A plea of total or partial failure of consideration is a permissible defense to an action founded upon a contract. Robbins v. Hays, 107 Ga. App. 12 (2) ( 128 S.E.2d 546). The burden of proving a prima facie case to recover the purchase price of goods sold is on the one claiming under the contract. The burden of sustaining the plea of total or partial failure of consideration is on the one asserting the defense. Robbins, supra; Messer v. Hewitt, 98 Ga. App. 498 (1) ( 106 S.E.2d 61).
3. In a suit on a contract to recover the purchase price of goods sold where the defense of failure, or partial failure of consideration is raised, a judgment of the trial court overruling the defendant's motion for new trial on the general grounds will not be set aside where the evidence shows that the plaintiff carried the burden of proving the prima facie case for the purchase price unless the evidence demanded a finding of either (1) a total failure of consideration, or (2) a partial failure of consideration in some amount different from that embraced in the judgment.
The evidence in this case authorized the verdict for the plaintiff. The evidence, although conflicting, did not demand a finding of total failure of consideration or a finding of a partial failure of consideration in an amount different from that embraced in the judgment.
The trial court did not err in denying the defendant's motion for new trial based solely on the general grounds.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.
DECIDED FEBRUARY 1, 1965.
This is an action brought to recover the purchase price of bags manufactured and shipped by the plaintiff under a contract with the defendant. The bags were to be used for the packaging of organic fertilizer. There were two shipments of bags. The issue of failure of consideration was raised to the initial shipment on the ground that the art work on the bags was faulty and erroneous in that a banana tree was shown bearing two stalks of bananas when in truth it is well known in the area where the bags were to be used that a banana tree grows only one stalk of bananas. Although the evidence was conflicting as to the placing of responsibility for this oversight, the evidence shows that the manufacturer secured overprints of a corrected banana tree at its expense and furnished these overprints to the user for affixing to the bags. These overprints were accepted by the user and the evidence shows that the user proceeded to use the bags although there is a conflict in the evidence as to the nature and terms of this acceptance and use. The defense of failure of consideration was asserted to both of the two shipments of bags on the ground that the bags were defective in their construction and were not suitable for the purpose intended. The evidence was conflicting on that issue.
The case proceeded to trial before the judge without the intervention of a jury. Following the trial, judgment was entered for the plaintiff in the amount sued for less a setoff of $749.50.
The defendant filed its motion for new trial on the general grounds. Exception is brought to the judgment of the trial court denying the motion for new trial.