
    Printup v. The Rome Land Company.
    The matter pleaded by the defendant in addition to the general issue was good in substance as a defence to the action, whether good for the affirmative relief prayed or not. 2 Warvelle on Vendors, 929, 930; Donelson v. Weakley, 3 Yerg. 178; Rogers v. Salmon, 8 Paige Ch. 559. The rule excluding parol evidence to add to or vary a written contract does not apply, and want of certainty and definiteness in setting forth the defence, being a defect of form, would not vitiate the pleas unless pointed out by special demurrer. The court erred in striking the pleas on motion.
    August 23, 1892.
    Yendor and purchaser. Contract. Evidence. Before Judge Turnbull. City court of Floyd county.
    December term, 1891.
    Action by the Rome Land Company for the use of Penfield et al., against Printup, on two promissory notes. When the case tsame on for trial plaintiff moved to strike all the defendant’s pleas, except the plea of the ' general issue. This motion was sustained, and the defendant excepted upon the grounds that the court erred: (1) In holding that the pleas were indefinite and uncertain. (2) In deciding that the pleas sought to add parol conditions to the contract of the parties. Defendant insists that the facts alleged in his pleas would void the plaintiff’s notes for fraud and deceit in their procurement, would establish want of consideration, and would entitle defendant to damages which he could recover against plaintiff by way of recoupment. (3) In striking the whole plea because parts of it are indefinite and insufficient. (4) In holding that the pleas were insufficient in law. Defendant insists that his pleas made a case of fraud in the procurement of the notes sued on, and failure of consideration, and such a failure of plaintifi: to comply with its representation and cross obligation as entitled defendant to recoupable damages.
    The pleas stricken were: On April 26 or 27, 1888, plaintiff had a public sale of certain lots of land which had been surveyed, laid off and platted, near the city of Rome and adjoining the town of East Rome. The public were invited to the sale, and at the sale, which was conducted on the land being sold, plaintiff' and its auctioneer, agents and officers represented to defendant and other bidders, that a dummy street car line would be built and permanently maintained and operated through the land and lots then and there being offered for sale, and exhibited maps and plats showing the location and line of said car line; plaintiff and its agents represented that said dummy line was being built and was to be a permanent line, and the lots then being sold would thereby be of easy access and be of great value for residence and other purposes; and they further represented and stated that arrangements had been made for the location and erection of manufacturing plants and factories in the immediate vicinity of the lots being sold. Relying upon the representations and promises aforesaid, defendant at the sale bought lots numbers 450 and 191 for $690, payable one fourth cash and the balance in equal instalments m one, two and three years, with interest at six per cent, from date, and gave his notes for the deferred payments and paid the cash payment, and paid all of the deferred payments except the notes now being sued on. Plaintiff gave to defendant bonds for titles to the lots, copies of which are attached to the plea. The representations of defendant at the sale and the exhibition of said maps and plats were all wrongfully and deceitfully made, for the purpose of inducing defendant and others to bid at the sale and to make sales of said lots, and the plaintiff' and its agents then well knew said representations and promises were not in fact true and would not be carried out. The said dummy line has not been built, maintained and operated, to the great injury and damage of defendant and of other purchasers at the sale, and no factories have been erected as stated. Defendant avers that, by reason of the facts aforesaid, the consideration of the notes sued on has wholly failed and the lots so sold to him are of little or no value. The lots are wholly valueless as town lots and are not worth exceeding the rate or value of farming'lauds, to wit $100 per acre. He attaches a statement showing that he has paid for and on account of the purchase of the lots $517.50 principal, and attaches, as an exhibit and as part of the plea, a full statement of the account between him and plaintiff touching the sale and purchase. He prays that he do have and recover of plaintiff the $517.50 principal, with interest thereon from the dates of the payment set forth in the exhibit, or such part thereof as under the facts he may be justly entitled to. The bonds for title attached were ordinary bonds, with no stipulations except to convey the land upon certain payments being made. Further, at the date of the auction sale plaintiff represented to defendant and other purchasers at the sale, that broad, graded avenues and streets had been laid out, and that said property and the lots into which it had been subdivided were connected by means of said streets and a steam dummy line with the city of Rome and its horse car lines, depots, stores, churches, schools, opera house, hotels, factories, etc., giving cheap, quick and pleasant transit to and from all portions of the city, thereby rendering the said lots convenient and desirable for homes, and that said avenues, streets and steam ca.r line would be kept open and maintained, and the defendant was induced by these representations to buy the lots aforementioned; but defendant shows to the court that said streets, avenues and dummy line have not been opened, graded and maintained, and on the contrary they have been abandoned and neglected, and the lots bought by this defendant are wholly unfit for residence lots and do not exceed in value $25 each. Wherefore he eómes into court and agrees and offers to surrender to the Rome Land Company all his interest in said lots acquired by his purchase and payments aforesaid, and offers to deliver up to said company said title bonds to be can-celled, and prays that he have and recover of said land company a judgment for all the moneys so wrongfully and fraudulently obtained from him as aforesaid.
   Judgment reversed.

Dabney & Fouché, for plaintiff in error.

Dean & Smith, contra.  