Ben L. O'Callaghan Co. v. Bond Supply Co.

225 S.E.2d 774, 138 Ga. App. 186, 1976 Ga. App. LEXIS 2100

• Court: Court of Appeals of Georgia
• Decided: March 19, 1976
• Docket: 51772
• Status: Published

Opinions

Pannell, Presiding Judge.

Bond Supply Company, Inc., brought an action against Ben O’Callaghan Company and Ben L. O’Callaghan based upon an agreement between the parties. The defendants answered and Ben O’Callaghan Company brought what it denominates its counterclaim against Bond Supply Company, Inc., its president, and Estes Heating and Air Conditioning, Inc., and its president, alleging, so far as material here, the following:

"7. The defendants and divers other persons whose names are unknown to plaintiff but well-known to defendants jointly and tortiously conspired to damage and injure plaintiff in its said business by undermining its financial position and its credit standing and by interfering with plaintiffs relationships with its customers, all for the purpose of driving plaintiff out of business and diverting its customers to defendant Estes Heating & Air Conditioning, Inc., and to other co-conspirators who are plaintiffs competitors, whose names are unknown to plaintiff, but well-known to defendants.

"9. In furtherance of the conspiracy, the defendants:

"(a) Represented to Buel Chapman, a home builder, that plaintiff was incapable of performing plaintiffs contracts with said Chapman;

"(b) Filed a claim of a materialman’s lien in favor of defendant Bond Supply, Inc. and against plaintiff upon land owned by J. M. Carroll & Associates in respect to materials sold to plaintiff, although defendants knew that the materials were delivered to and installed upon property not owned by said Carroll & Associates and although defendants knew that the lien was claimed upon property of said Carroll & Associates to which no materials had ever been delivered;

"(c) Caused defendant Bond Supply, Inc., which had contracted with plaintiff to sell to it at a firm quoted price Fedders heating and air conditioning equipment for a job plaintiff had contracted to perform for J. M. Carroll & Associates, to raise the prices it charged plaintiff and to refuse to deliver the equipment unless plaintiff paid such prices, knowing that plaintiff had contracted with said Carroll based on the original firm quotation, and knowing that defendants thereby would cause plaintiff to lose its profit or even to experience a cash loss in performing its contract with Carroll;

"(d) Caused defendant Bond Supply, Inc. to charge plaintiff highe[r] prices for the same equipment than it charged its co-conspirators, so as to enable the co-conspirators to underbid plaintiff.

"10. The acts of Estes Heating & Air Conditioning, Inc. in furtherance of the conspiracy were performed by its said president, N. B. Estes, who also is a stockholder and director of defendant Bond Supply, Inc., and by others of its officers, employees and agents whose names are unknown to plaintiff, but well-known to defendants.

"11. The acts of Bond Supply, Inc. in furtherance of the conspiracy were performed by its said president, Jerry L. Morris; by its said stockholder and director, N. B. Estes; and by others of its officers, employees and agents whose names are unknown to plaintiff, but well-known to defendants.

"12. The conspiracy and acts of the defendants were tortious, and their agreement so to conspire and act was in violation of Section 2-2701 of the Code of Georgia.”

General damages were sought in the amount of $200,000, and punitive and exemplary damages in amount of $500,000. A motion was made by Bond Supply Company, Inc., to dismiss the counterclaim on various grounds, the only ones argued here being, (1) the counterclaim was upon an action in tort as opposed to an action on contract and could only be entertained by a court of equity under Code § 37-308, and (2) the counterclaim sounded as an action for an injury to reputation of which the Civil Court of Fulton County had no jurisdiction. The trial judge granted the motion based upon the first contention. Held:

1. It has been held by this court that under the Civil Practice Act an ex delicto counterclaim may be asserted against an ex contractu action. See Cities Service Oil Co. v. Cronan, 123 Ga. App. 794 (182 SE2d 484); Elsner v. Cathcart Cartage Co., 124 Ga. App. 615 (2) (184 SE2d ).

Argued February 3, 1976 Decided March 19, 1976. Gambrell, Russell, Killorin & Forbes, Theodore M. Forbes, Jr., for appellants. Jeffrey Sakas, for appellee.

The appellee relies on Autry v. Palmour, 124 Ga. App. 407 (184 SE2d 15). In that case it appeared that "not only must the equitable right of set off because of insolvency be recognized, but the equitable right of the surety to either equitable subrogation or an equitable lien must also be recognized ” and that "This, only a court of equity can do.” (Emphasis supplied.)

The trial judge erred in dismissing the counterclaim on the ground that a tort claim cannot be set off against a contract claim except in a court of equity.

2. Nor was the counterclaim subject to dismissal on the grounds that the Civil Court of Fulton County had no jurisdiction of the subject matter. While some of the acts alleged to have been committed by the defendant conspirators in the counterclaim may have been objectionable as being on the subject matter of injury to reputation of which the Civil Court of Fulton County had no jurisdiction (See Ga. L. 1956, p. 3277 which gives to that court jurisdiction as to certain subject matter except "injuries to person or reputation,” also, Funk v. Baldwin, 80 Ga. App. 177 (2) (55 SE2d 733)), all of the acts alleged can not be so categorized. Accordingly, the counterclaim, being good in part was not subject to dismissal on that ground.

3. The judgment dismissing the counterclaim is, therefore, reversed.

Judgment reversed.

Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Bell, C. J., Evans and Stolz, JJ., dissent.