The evidence authorized the judgment entered by the trial judge sitting without the aid of a jury, and the court did not err in denying the motion for new trial on the general grounds.

John E. Skandalakis sued Alexander on a note in the amount of $5,000 alleged to have been executed by the defendant to John P. Skandalakis and assigned by him to John E. Skandalakis, the note thus sued on being dated July 19, 1957 (the same date as the contract sued on by John P. Skandalakis), and recited that, "As per agreement after date I promise to pay to the order of John P. Skandalakis . . . five thousand and no/100 dollars."

The cases were tried together in the Civil Court of DeKalb County before a judge sitting without a jury, and after hearing evidence the judge entered judgment for the plaintiff in both cases. The defendant made a motion for new trial on the general grounds in each case which the court denied, and the exception here is to those judgments.

The fact that one of the listed creditors refused to accept payment on the indebtedness to him except in cash or would accept time payments only upon the giving by the defendant of security to him, and the further fact that said creditor sought to assert rights against the defendant under a security instrument executed by the plaintiff, which rights the creditor could not legally have asserted under such instrument, did not constitute a defense which the defendant could invoke in the suit on the contract seeking to compel his performance in accordance with its terms.

The evidence shows that the defendant was to assume $15,655 of the plaintiff's indebtednesses. The creditors to whom these obligations were due were listed in the contract. The mere fact that one of these creditors held a security instrument against the plaintiff which was undisclosed, but which would have been discharged by the proper and timely payment of the obligations assumed by the defendant did not constitute a fraud on the defendant such as to authorize him to refuse to perform the contract. Furthermore, under the evidence, the fact that the plaintiff had other outstanding obligations and indebtednesses which were not listed in the contract and which the defendant did not assume to pay did not constitute a fraud on the defendant such as would be a defense to the action on the contract.

While the defendant denied in his testimony that there had ever been a delivery of the business to him or that the plaintiff had ever turned the keys over to him, this testimony was controverted by the plaintiff and by the plaintiff's witnesses. The finding of the judge that there had been a delivery of the business and substantial performance by the plaintiff of his part of the contract was authorized by the evidence. The evidence showed the execution of the contract and of the note sued on, performance by the plaintiff under the contract and the failure and refusal of defendant to pay the sums due. Under the circumstances, the judgment of the trial court in favor of the plaintiffs was authorized by the evidence and the trial judge did not err in denying the motions for new trial on the general grounds.