Carter v. Rich's, Inc.

• Citation: 83 Ga.App. 188,63 S.E.2d 241
• Decision Date: 27 January 1951
• Docket Number: Nos. 1,No. 33289,2,33289,s. 1
• Parties: CARTER v. RICH'S, Inc
• Court: Georgia Court of Appeals

Page 241

63 S.E.2d 241

83 Ga.App. 188

CARTER v. RICH'S, Inc.

No. 33289.

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

Jan. 27, 1951.

Syllabus by the Court.

1. The trial judge had authority to rule upon the general demurrer to the affidavit of illegality, although the general demurrer was filed more than 15 days from the time the illegality was filed. Macon & B. R. Co. v. Walton, 121 Ga. 275, 48 S.E. 940; Miami Butterine Co. v. Frankel, 190 Ga. 88, 8 S.E.2d 398, and cases cited therein. Furthermore, the defendant amended the affidavit of illegality and the plaintiff demurred to the amendment and renewed its demurrers to the illegality, as amended, within 15 days from the time the amendment was filed.

2. A ground of an affidavit of illegality to the foreclosure of a contract retaining title to personal property to secure debt, which states that the debt is not due and not unpaid and that the affidavit of foreclosure is untrue, pleads no facts showing that the amount claimed is not due, and, as a general denial, it is not an issuable defense which the defendant might have set up in an ordinary suit upon the demand secured by the contract retaining title. Code, §§ 67-1601, 67-1602 and 67-801; Stansell v. Corley, 81 Ga. 453(2, 4), 8 S.E. 868; Johnson v. Cobb, 100 Ga. 139, 28 S.E. 72; Kent v. Rogers, 58 Ga.App. 835, 200 S.E. 235.

3. A plea of tender which shows only willingness and ability to pay without more is insufficient to show a tender.

4. A ground of an affidavit of illegality to the foreclosure of a contract retaining title to personal property to secure debt, which sets up a new contract, retaining title to the same property to secure the same debt, and made after the creditor had fully performed his obligation under the original contract and had filed an affidavit foreclosing the same, but which does not show a consideration supporting the new contract, is insufficient as a defense to the foreclosure.

5. The affidavit of illegality being wholly insufficient as a defense to the forecloseure of a contract retaining title to personal property, it was not error for the trial judge to strike it.

Frank E. Blankenship, Atlanta, for plaintiff in error.

Parker & Parker, Atlanta, for defendant in error.

SUTTON, Chief Judge.

Rich's, Inc., foreclosed, in the City Court of Decatur, a contract retaining title to personal property to secure a debt of $556.38. The contract was dated December 7, 1949, and recited that Carter had on that day purchased from Rich's, Inc., twelve described items of household furniture. The price of the twelve items aggregated $552.34; the cash payment of $52.36 was subtracted from this sum, leaving a balance of $499.98, and carrying charges of $56.40 for 24 months were added to this balance, making the amount sworn to be due, $556.38. This amount was payable 'upon the following terms: $52.36 cash and balance at (23) 21.93(1) 22.01, per month.' Title to the property listed was to remain in Rich's, Inc., until the full price was paid. If not paid within 90 days, Carter agreed to 'pay a carrying charge at the rate of one-half of one per cent per month from the date of the purchase until paid.' If default were made in any payment, Rich's, Inc., had the right at its option to declare the entire amount due. Carter signed this paper.

The foreclosure affidavit with the copy of the contract attached was filed on January 13, 1950; a fi. fa. was issued thereon returnable on the third Monday in March, and levy was made upon the article described in the contract on January 14, 1950.

On March 6, 1950, Carter filed an affidavit of illegality to the foreclosure, which, as later amended, alleged that the contract upon which the plaintiff based its foreclosure was not at that time in existence, since a new contract had been executed bearing the same date as the former one, December 7, 1949, and the new contract was accepted by the plaintiff on March 4, 1950, at which time the defendant, Carter, paid $2.98 in addition to the down payment already made, which sum was accepted by the plaintiff; that the new contract covered the same property and the same consideration as set forth in the original contract upon which the foreclosure was based; and that a copy of the new contract was attached. The alleged new contract recited the sale to Carter of the same twelve articles, listed at the same prices, and it reflected the same cash payment of $52.36, and also $2.98 'to be paid', leaving a balance of $497. A carrying charge of $59.64 was added to this balance, making a total price of $556.64. This was payable 'upon the following terms: $52.36 cash and balance at (23) $23.19(1) $23.27, per month.' All other provisions were identical with those of the contract foreclosed.

The second ground of the affidavit was to the effect that the amount shown in the plaintiff's affidavit was not due and was not unpaid, that there had been no demand for payment, and that the plaintiff's affidavit was untrue.

The third ground of the illegality consisted of allegations that the defendant was and had been ready, willing, and able to pay the first and subsequent instalments of the price as they fell due, but no further particulars to establish a tender were alleged.

To this affidavit of illegality, the plaintiff filed demurrers which raised the question of whether the affidavit of illegality set forth sufficient facts to show that the foreclosure was proceeding illegally. The general demurrers were sustained, and to this ruling the defendant excepted.

1-3. The rulings made in the corresponding divisions of the headnotes require no further elaboration.

4. Since the trial judge ruled only on the general demurrers filed by the plaintiff, this court must determine whether the affidavit of illegality contains any averments constituting in substance a good defense against the foreclosure proceeding. The grounds consisting of a plea of tender and a general denial are insufficient. Did the alleged new contract set up in the illegality discharge the obligation of the defendant under the first contract? We think not.

Both writings purport to be memoranda of the same transaction, both are dated as of December 7, 1949, and the provisions for the monthly payments thereafter are the same. Although the charges for the individual articles listed are the same in each writing, the writing foreclosed contains some inconsistencies which do not appear in the later writing. In the first writing, the carrying charge for 24 months of...