Atlas Auto Finance Co. v. Atkins
| Decision Date | 13 April 1949 |
| Docket Number | 32358. |
| Citation | 53 S.E.2d 171,79 Ga.App. 91 |
| Parties | ATLAS AUTO FINANCE CO. v. ATKINS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The counter affidavit of the defendant in this action to foreclose a title retention contract amounted to a plea of recoupment, and the court did not err in refusing to strike it.
2. The several excerpts from the charge dealt with in divisions 2 3, 4, 5, 6 and 7 of the opinion show no error requiring the grant of a new trial.
3. The assignment of error on the failure of the court to charge regarding the measure of damages is too general, vague and indefinite to be considered by this court.
4. The court did not err in permitting the defendant to testify that he would have paid the contract foreclosed if the plaintiff had provided the collision insurance on the automobile.
5. The evidence authorized a finding for the defendant, and as the defendant has written off the money verdict in his favor, the general grounds of the motion show no cause for a new trial.
Atlas Auto Finance Company filed an affidavit to foreclose a title retention contract on an automobile against C. P. Atkins. The defendant filed a counter affidavit in which he set up that he had purchased the automobile involved from Hughes Used Cars who carried him to the office of Atlas Auto Finance Company for the purpose of arranging to finance a balance of $450 on said car; that he said a statement of the transaction showing a deferred balance of $450 on the purchase price, and the sum of $203.36 for insurance premiums on the automobile and finance charges thereon, and that it was agreed and understood at the time the plaintiff agreed to finance the car that he should have fire, theft, and $50 deductible collision insurance on said automobile; that the finance company arranged to cover said automobile with insurance with a company of their choice, and that a representative of said company unknown to the defendant but well known to the plaintiff, stated to the defendant at the time the automobile was financed that complete insurance coverage would be carried on said automobile for the price stated.
The defendant further alleged that the automobile covered by the contract had been damaged to the extent of about $450 in a collision which occurred prior to the default in the payments on the contract; that he immediately notified the finance company (the plaintiff in foreclosure) of that fact and requested them to notify the insurance carrier so that an investigation and payment of the loss might be made; that thereupon the finance company informed him that he had no collision insurance; and that 'if he did not have insurance on said automobile as represented to him by plaintiff in foreclosure that he is then entitled to have [and] recover of plaintiff in foreclosure the full amount of his injury and damage resulting from said collision in the amount of $450.00, and affiant prays for a judgment in said sum in the nature of a recoupment herein.' In his counter affidavit the defendant further contended that the contract and note on which the foreclosure was founded was usurious and tainted with usury.
The plaintiff moved to dismiss the counter affidavit on the grounds that it set forth no defense to the foreclosure; that it attempted to plead a set-off against the foreclosure proceeding, which could not be done without showing that the plaintiff was a non-resident or that it was insolvent, and because of certain technical defects in the plea of usury. The court sustained the motion as to the plea of usury and struck that part of the counter affidavit dealing with usury but overruled the motion as to the alleged plea of set-off. The plaintiff filed exceptions pendente lite to that ruling on the ground that the court should have sustained the motion to dismiss on all the grounds therein. The defendant did not except to that ruling. The jury returned a verdict for $462.54 for the defendant. The plaintiff's motion for a new trial on both general and special grounds was overruled and it excepted, assigning error also on the exceptions pendente lite.
Before the motion for new trial was passed upon the defendant voluntarily wrote off the sum of $462.54 found in his favor against the plaintiff, so as to make the verdict read merely for the defendant with no money.
Smith Kilpatrick, Cody, Rogers & McClatchey and Sidney Haskins, all of Atlanta, for plaintiff in error.
J. L. Davis, of Cartersville, for defendant in error.
1. The plaintiff contends that the counter affidavit of the defendant amounted to a plea of set-off which could not be pleaded against the foreclosure of a title retention contract. The defendant contends that the counter affidavit was not a plea of set-off but one of recoupment. 'In a proceeding to foreclose a chattel mortgage, the mortgagor may, by affidavit of illegality avail himself of any defense which he might set up in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due and owing; and, while the mortgagor is thus permitted to avail himself of a valid defense by way of recoupment, he is not entitled to plead the defense of set-off in such a summary proceeding, since the latter defense is not one which goes to the justice of the plaintiff's demand. * * *' Futch v. Taylor, 22 Ga.App. 441(3), 96 S.E. 183. See also Humphreys v. Jesup & Sons, 43 Ga.App. 274(1), 158 S.E. 442; Glass v. Adams, 44 Ga.App. 437, 161 S.E. 630; Arnold v. Carter, 125 Ga. 319, 54 S.E. 177; Culver v. Wood & Bro., 138 Ga. 60(3), 74 S.E. 790. A bill of sale retaining title to personal property to secure a debt may be foreclosed in same manner as mortgages on personal property. Code, § 67-1601. A defendant in a bill of sale foreclosure proceeding can make the same defenses by counter affidavit a mortgagor could make by illegality in a chattel mortgage foreclosure. Code, § 67-1602.
Is the counter affidavit filed by the defendant a plea of set-off or one of recoupment? 'Set-off is a defense which goes not to the justice of the plaintiff's demand, but sets up a demand against the plaintiff to counterbalance his in whole or in part.' Code, § 20-1301. 'Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.' Code, § 20-1311. Code, § 20-1314. 'We consider the doctrine well settled, that where a plaintiff sues on one part of a contract, consisting of mutual stipulations made at the same time and relating to the same subject-matter, the defendant may recoup his damages arising from the breach of that part which is in his favor and this, whether the different parts are contained in one instrument or several; and though one part be in writing and the other in parol: Aliter, where the contract for the breach of which damages are claimed by defendant, is entirely distinct and independent of the one on which the plaintiff sues.' Mell v. Moony, 30 Ga. 413, 415. 'If a parol contract embrace many particulars on either side, and there be part performance on both sides, when one party seeks by action at law to take the fruits of his own part performance, the other party may recoup his damages for any breach by the plaintiff of other stipulations in the same general contract.' Finney v. Cadwallader, 55 Ga. 75(1). In the body of the opinion in that case, 55 Ga. on page 79, it was said: 'Recoupment looks through the whole contract, treating it as an entirety, and regarding the things done and stipulated to be done on each side as the consideration of the things done and stipulated to be done on the other; and when a plaintiff seeks redress for the breach of the stipulations in his favor, it sums up the grievances on each side, strikes a balance, and gives him a judgment for only such difference as may be found in his favor.'
Under the facts of this case and the rules of law cited, the plea of the defendant amounted to a plea of recoupment. It was properly allowed as a defense to the foreclosure affidavit and the court did not err in refusing to strike it. Under the contract foreclosed the purchaser was required to keep said car insured against fire and theft, and to keep said car insured against collision hazard if requested to do so by the seller, and the seller could place any or all of said insurance on said car at the purchaser's expense if the seller so elected. Under the pleadings and the evidence the written contract foreclosed was incomplete on its face, and the agreements respecting the financing and insuring of the automobile were parts of one general contract of purchase, partly in writing and partly in parol, entered into at one time. The financing charges and insurance premiums were lumped together in one figure, as expressed in the written part of the contract, and all the obligations and cross-obligations undertaken at the time the contract was entered into constituted a part of the same contract. Under the allegations of the counter affidavit the plaintiff's failure to provide the insurance coverage alleged was a breach of the cross obligations of the contract which entitled the defendant to recoup any damages resulting from such failure.
2. Ground 4 of the amended motion for new trial complains of this...
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