Ellison v. William Huff Ford, Inc.

Sognier, Judge. Appellant Ellison filed a complaint against William Huff Ford alleging breach of contract and fraud. Ellison purchased a 1978 Thunderbird from appellee and claims that part of the consideration for said purchase was that appellee accept as a trade-in appellant’s 1977 Gremlin and pay the balance ($1,673.40) owing on the Gremlin to Columbus Bank and Trust Co. William Huff Ford counterclaimed alleging that Ellison had agreed to pay the balance on the Gremlin and that as a consequence of Ellison’s failure to do so that William Huff Ford had been damaged in the amount of $1,673.40. Subsequent to the filing of their counterclaim, appellant contends that appellee paid Columbus Bank and Trust Co. the balance owed on the Gremlin. Ellison voluntarily dismissed his complaint and moved to dismiss appellee’s counterclaim. The trial court denied appellant’s motion to dismiss both the complaint and the counterclaim and granted certificate for immediate review. We affirm. Appellant contends that the debt owed Columbus Bank and Trust Co. has been paid, and because of this that appellee’s [109] counterclaim no longer states a cause. Appellant treats his motion as one for summary judgment under Rule 12(c) and on appeal attaches a letter to his brief in support thereof. A review of the record discloses no other evidence pertaining to payment. This Court cannot consider factual representations in a brief which do not appear in the record. Coweta Bonding Co. v. Carter, 230 Ga. 585, 586 (198 SE2d 281) (1973); Konscol v. Konscol, 151 Ga. App. 696 (261 SE2d 438) (1979). Submitted April 7, 1980 Decided June 27, 1980. William H. Arey, William G. Snipes, for appellant. Tyron Elliott, for appellee. Appellant’s motion to dismiss was properly denied. Judgment affirmed. Deen, C. J., and Birdsong, J., concur.