Ohoopee Production Credit Ass'n v. Aspinwall, 74116

Decision Date16 June 1987
Docket NumberNo. 74116,74116
Citation183 Ga.App. 306,358 S.E.2d 884
Parties, 4 UCC Rep.Serv.2d 1073 OHOOPEE PRODUCTION CREDIT ASSOCIATION v. ASPINWALL.
CourtGeorgia Court of Appeals

Kenneth R. Carswell, Jesup, for appellant.

J. Alvin Leaphart, Jesup, for appellee.

BENHAM, Judge.

Appellee Aspinwall executed a promissory note in favor of appellant in order to purchase a tobacco harvester from appellant, which had come into possession of the harvester after the original owner, who had financed its purchase through appellant, had defaulted. When appellee made no further payment on the note, appellant declared the obligation in default and filed suit to recover the balance due. Appellee filed an answer in which he admitted the execution and delivery of the note, and a counterclaim. A jury verdict resulted in the entry of a judgment for $6,000 in favor of appellee on his counterclaim. On appeal, appellant contends the trial court erred in denying appellant's motions for directed verdict on its claim as well as appellee's counterclaim, and in the charge on the implied warranties of merchantability.

1. Appellant argues it was entitled to a directed verdict in its suit on the note because it had established a prima facie case of appellee's liability on the note: appellee had admitted execution of the note and had failed to raise any viable defenses to the note. See Nat. Bank of Ga. v. Keriaze, 163 Ga.App. 652, 294 S.E.2d 688 (1982). Appellee maintains that he raised the affirmative defense of failure of consideration in his counterclaim.

After filing an answer in which he admitted execution and delivery of the note in question but denied liability thereon, appellee filed a counterclaim which stated: "The Defendant shows that the note given the Plaintiff and sued on in the Petition was for a tobacco harvester which Plaintiff held out to be a good and efficient machine to be used in the harvesting of tobacco. When in fact, this machine was completely worthless, was not suited for the use intended, that is the harvesting of tobacco in that the machine when used for this purpose destroyed about as much tobacco as it picked." The counterclaim went on to describe the damage the harvester allegedly inflicted and demanded $30,000 to compensate appellee for the tobacco he lost due to the allegedly worthless tobacco harvester.

"In pleading to a preceding pleading, a party shall set forth affirmatively ... failure of consideration ... When a party has mistakenly designated a defense as a counterclaim ..., the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation." OCGA § 9-11-8 (c). "The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived...." Phillips v. State Farm, etc., Ins. Co., 121 Ga.App. 342(2), 173 S.E.2d 723 (1970). Rather than stating a defense of failure of consideration, appellee's counterclaim alleges breaches of the warranty of merchantability and fitness for a particular purpose. The language alleging the machine to be worthless did not assert the defense of failure of consideration; rather, it described how unsuitable the machine allegedly was for harvesting tobacco. Inasmuch as appellant established a prima facie case and appellee did not establish a legally sufficient defense, appellant was entitled to a directed verdict on its main claim. See Nat. Bank of Ga. v. Keriaze, supra.

2. As stated earlier, appellee's counterclaim alleged breaches of the implied warranties of merchantability and fitness for a particular purpose. See OCGA §§ 11-2-314 and 11-2-315. Appellant claims it was entitled to a directed...

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6 cases
  • Harrison v. Martin
    • United States
    • Georgia Court of Appeals
    • May 27, 1994
    ...438 S.E.2d 404. See Commonwealth Land Title Ins. Co. v. Miller, 195 Ga.App. 830, 833, 395 S.E.2d 243; Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga.App. 306(1), 358 S.E.2d 884. In the case sub judice, Martin testified that one of the $25,000 notes executed on January 5, 1978, replaced the......
  • Brown v. Little
    • United States
    • Georgia Court of Appeals
    • July 21, 1997
    ...Ga.App. 858, 859, 162 S.E.2d 442 (1968); see also George v. Roberts, supra at 584-585, 469 S.E.2d 249; Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga.App. 306, 307, 358 S.E.2d 884 (1987). In the case sub judice, appellee answered appellant's complaint with a general denial; he later amende......
  • International Multifoods Corp. v. National Egg Products, Div. of Hudson Foods, Inc., A91A1281
    • United States
    • Georgia Court of Appeals
    • November 20, 1991
    ...context of a perishable good. See generally Hudson v. Gaines, 199 Ga.App. 70(2), 403 S.E.2d 852 (1991); Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga.App. 306, 358 S.E.2d 884 (1987); Economy Forms Corp. v. Kandy, 391 F.Supp. 944, (N.D.Ga.1974) affirmed 511 F.2d 1400 (5th Cir.1974). Nevert......
  • Cobb County School Dist. v. MAT Factory, Inc.
    • United States
    • Georgia Court of Appeals
    • November 28, 1994
    ...tender. It is ineffective unless the buyer seasonably notifies the seller.' OCGA § 11-2-602(1)." Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga.App. 306, 307-308(2), 358 S.E.2d 884 (1987); Intl. Multifoods Corp. v. Nat. Egg Prods., etc., 202 Ga.App. 263, 266(4), 414 S.E.2d 253 (1991). We h......
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