Interstate Lumber Co. v. Bennett , 28 Ga. App. 179 ( 1922 )

Stephens, J.

1. Where there is a contract between two parties, by the terms of which one party has agreed to pay the other party for the performance of certain services when performed, and, before the performance of such services by the latter party, the first party makes an advancement of money under the contract to the second party and takes as security therefor a chattel mortgage executed by the second party, the second party may in a defense to a foreclosure of such mortgage by the first party show that the advancement for which the mortgage has been given has been satisfied by the second party’s performance of the original contract, and may also in addition thereto recover against the first party any balance which may be due the second party by the first party under the contract. Such a defense is not a set-off, but is a plea of payment and recoupment, and may be made by the defendant in. a proceeding to foreclose the mortgage.

2. The counter-affidavit of the defendant, setting up such a defense, was good against demurrer, and as it was supported by the evidence, the trial judge did not err in overruling the demurrer or the motion to strike the counter-affidavit or in' overruling the plaintiffs’ motion for a new trial. Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.