Coast Scopitone, Inc. v. Self, 47392
| Decision Date | 25 September 1972 |
| Docket Number | No. 47392,No. 3,47392,3 |
| Citation | 127 Ga.App. 124,192 S.E.2d 513 |
| Parties | , 11 UCC Rep.Serv. 763 COAST SCOPITONE, INC. v. Robert H. SELF |
| Court | Georgia Court of Appeals |
Schwall & Heuett, Stan M. Lefco, Emory A. Schwall, Atlanta, for appellant.
Hendon & Henley, E. T. Hendon, Jr., Decatur, for appellee.
Syllabus Opinion by the Court
Coast Scopitone, Inc. borrowed money from the Hancock Bank in Gulfport, Mississippi, with which it purchased six machines designed to show movies with sound and which could be viewed by patrons by the deposit of a coin in a slot. The shareholders of Scopitone secured the loan for Scopitone from the bank and indorsed the note or guaranteed the loan. In September, 1967 the machines were sold to Robert H. Self and under the terms of the sale he executed his note to the bank for $15,485, balance of the agreed purchase price, with interest and insurance, and payments at $1,000 per month were to be credited to it and to the Scopitone note. The note was renewed with payments reduced to $500 per month in February 1968. Self made payments totaling $10,409.25 (the last on October 2, 1969) and defaulted as to the balance. The bank required Scopitone to pay its indebtedness and the Self note was assigned to it. Scopitone then sued Self for the outstanding balance under his note in the amount of $4,994.65. Self filed a plea of general issue, nul tiel corporation, total failure of consideration, a counterclaim for the payments made, and the case came on for trial.
At the trial he admitted execution of the note and receipt of the six machines. He contended that they had been inoperable and worthless, but admitted that he had placed some of them in restaurants or similar locations and had received income from them and that he had made payments on them for a period of about two years. He asserted that there had been difficulty about getting films that could be used in the machines, and that they had been in storage in Gulfport and were damaged by salt water air. In the record is a letter which he wrote to the bank May 19, 1969, long after he had purchased and received the machines, saying that he 'had film problems-tax problems, and first of the year hangups,' but would catch up the payments. On April 15, 1969 he wrote the bank about a renewing of the note, saying 'what I hold of yours here now has a possible market value of $2,500.'
He also contended that he had incurred expense in the maintenance of the machines which exceeded the income derived from them and that there were some which simply could not be put in operable condition.
There was evidence that the machines had been in operation for approximately a year before the sale to Self, that until a short time before the sale all save one had been in use, and that while it had been in storage it was, nevertheless, in operable condition. Plaintiffs conceded that they had experienced difficulty in obtaining new and different films for the machines, but asserted that at the time of sale each machine had in it 36 films.
The case was tried before a judge without a jury, and at the close of the evidence he rendered judgment for the defendant, apparently sustaining defendant's plea of total failure of consideration. Plaintiff appeals, enumerating the judgment as error and asserting that the evidence simply did not authorize it. Held:
1. The defense of failure of consideration (whether total or partial) is an affirmative one. CPA § 108(c) (Code Ann. § 81A-108(c)). While a plea of total failure of consideration includes a partial failure, upon proof of which the defendant is entitled to an abatement of the purchase price to the extent the consideration may have failed, Morgan v. Printup Bros. & Pollard, 72 Ga. 66, the burden of proof in establishing either is on the defendant. De Lay v. Galt, 141 Ga. 406, 81 S.E. 195. If he relies upon a total failure he must show that the goods were wholly without value; if he relies upon a partial failure he must show the extent of the failure with such particularity and certainty that the jury (or judge) could, without guesswork or speculation, arrive at the amount. John Deere Co. v. Lindsey Landclearing Co., 122 Ga.App. 827, 828, 178 S.E.2d 917; 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, and citations; Code § 20-310. Where it appears from the evidence that the goods have some...
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