National Organic Corp. v. Southern Bag Corp.

• Decision Date: 01 February 1965
• Docket Number: No. 3,No. 40957,40957,3
• Citation: 111 Ga.App. 111,140 S.E.2d 890
• Parties: NATIONAL ORGANIC CORPORATION v. SOUTHERN BAG CORPORATION
• Court: Georgia Court of Appeals

Page 890

140 S.E.2d 890

111 Ga.App. 111

NATIONAL ORGANIC CORPORATION v. SOUTHERN BAG CORPORATION.

No. 40957.

Court of Appeals of Georgia, Division No. 3.

Feb. 1, 1965.

Parks & Eisenberg, David S. Eisenberg, Atlanta, for plaintiff in error.

Hurt, Hill, Richardson & Sosebee, Robert R. Richardson, Hugh D. Sosebee, Atlanta, for defendant in error.

Syllabus Opinion by the Court

BELL, Presiding Judge.

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...