Anchor Sign Co. of Ga. v. PS Heating & Air Conditioning Co.

• Citation: 186 S.E.2d 892,125 Ga.App. 207
• Decision Date: 11 November 1971
• Docket Number: No. 46509,3,2,Nos. 1,46509,s. 1
• Court: United States Court of Appeals (Georgia)
• Parties: ANCHOR SIGN COMPANY OF GEORGIA, INC. v. PS HEATING & AIR CONDITIONING COMPANY

Page 892

186 S.E.2d 892

125 Ga.App. 207

ANCHOR SIGN COMPANY OF GEORGIA, INC. v. PS HEATING & AIR CONDITIONING COMPANY.

No. 46509.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 11, 1971.

Rehearing Denied Dec. 15, 1971.

Peek, Whaley & Haldi, Glenville Haldi, Atlanta, for appellant.

Cotton, Katz & White, Richard A. Katz, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

This appeal is from the direction of a verdict for the plaintiff in a jury trial in the Civil Court of Fulton County.

PS Heating & Air Conditioning Co., filed an action on open account against Anchor Sign Company of Georgia, Inc., alleging a balance due of $1,073 on a contract whereby a heating and air-conditioning unit was to have been installed by the plaintiff in the defendant's place of business.

The original cost of the entire job was $2,146 and one-half ($1,073) was paid leaving a balance owing of $1,073.

Defendant admitted that such a contract had been entered into, but defended on the ground that there had been a failure of consideration on the part of the plaintiff, in that the air-conditioning unit had never been installed correctly and had never operated properly.

Upon the trial of the case, the defendant admitted a prima facie case, admitting that the contract had been entered into and assumed the burden of proof of failure of consideration. At the close of the defendant's evidence, the trial court granted a motion for directed verdict on the part of the plaintiff. Held:

The evidence showed that there had not been a total failure of consideration because the defendant had attained a benefit from the use of the air conditioning unit. Therefore, the defendant's only defense would have been a partial failure of consideration.

The general rule of law applicable to proof of partial failure of consideration is contained in Code § 20-310. The proof offered must substantiate to what extent the consideration has failed so that it would be possible for the jury or for the court to determine the extent of failure of consideration. Absent such proof, the defense of partial failure of consideration must fall. Moore v. Smith, 31 Ga.App. 491, 121 S.E. 136; Hall v. Southern Sales Co., 81 Ga.App. 392(2), 58 S.E.2d 925; Andrews v. Bickerstaff, 93 Ga.App. 571, 92 S.E.2d 257.

While there was testimony that the defendant paid a repair bill of $22.50, this would not be sufficient data from which the true value could be established. See Stanfield v. Pettibone Mulliken Corp., 122 Ga.App. 426, 177 S.E.2d 261. Upon the evidence submitted, the jury would not be able to determine, with any degree of certainty, the extent of the failure of consideration.

The defendant having failed to make out the defense of a partial failure of consideration, the direction of the verdict was not error.

Judgment affirmed.

BELL, C.J., JORDAN and HALL, P. JJ., and EBERHARDT and PANNELL, JJ., concur.

DEEN and EVANS, JJ., dissent.

WHITMAN, J., not participating.

EVANS, Judge (dissenting).

I cannot agree to the view the majority has taken of the evidence submitted in this case. The majority holds that there was no evidence as to what expense the defendant had paid to repair the unit and no evidence to enable the jury the determine with any degree of certainty the extent of the failure of consideration. Then, the majority opinion concludes that defendant failed to sustain his plea of failure of consideration, and that the trial judge properly directed a verdict for plaintiff.

The evidence here shows that the total price of the heating and air conditioning equipment was $2,146 of which $1,073 had been paid, leaving a balance of $1,073. The defendant offered evidence sufficient to show that: (1) the air conditioning unit never worked properly and never adequately cooled the building; (2) the 'vents were hanging down'; (3) water leaked from the vents in the building; and (4) the air conditioning unit...