Bagwell Manufacturing Co. v. Royer Wheel Co.

113 S.E. 56, 29 Ga. App. 4, 1922 Ga. App. LEXIS 4

• Court: Court of Appeals of Georgia
• Decided: July 24, 1922
• Docket: 13196
• Status: Published

Opinion

Jenkins, P. J.

In an action , on a note the defendant may by way of set-off plead unliquidated damages flowing from the breach of an independent contract between the parties. Pickett v. Andrews, 135 Ga. 299 (69 S. E. 478). Had the plea purported to claim damages in recoupment, it would have been subject to special demurrer by reason of the failure to show that the damages claimed were occasioned by the plaintiff’s breach of the contract sued on (White v. Blitch, 112 Ga. 775, 38 S. E. 80); but even then, it does not necessarily follow that such an omission would authorize the striking on motion of the plea, where it could be treated as a plea good by way of set-off. Fontaine v. Baxley, 90 Ga. 416 (17 S. E. 1015). It was therefore error to strike on motion, the plea of set-off, since in such a ease, if any part of the plea be good in substance, a motion to strike should be overruled. Finney v. Cadwallader, 55 Ga. 75 (3).

Decided July 24, 1922. Ed. Quillian, for plaintiff in error. W. V. Lance, P. R. Matthews, contra.

Judgment reversed.

Stephens, J., concurs.