Coplan v. Thompson Transfer Co.

75 S.E. 822, 11 Ga. App. 488, 1912 Ga. App. LEXIS 75

Opinion

Russell, J.

The amendment to the plea was not objected to, and the plea as, amended was practically a declaration of the defendant’s election to waive the tort and, by cross-action of set-off, to sue .upon a breach of contract. Civil Code, § 4407. The court therefore erred in striking the plea on the ground that it was an effort to set off a tort against a claim arising ex contractu, and in thereafter directing a verdict. Even if the original plea can be construed as a set-off sounding in tort, the defendant had the right to waive the tort and sue’ upon the alleged breach of contract. Judgment reversed.

Charles G. Janes, Bunn & Bunn, for plaintiff in error,

cited: Civil Code, § 4407; 104 Ga. 692, 696; 94 Ga. 140-1; 118 Ga. 119; 123 Ga. 727 (1); Cooley, Torts (1880), 91.

W. W. Mundy, contra,

cited: Civil Code, §§ 5668, 4340, 4406; 90 Ga. 416 (2); 3 Ga. App. 709 (1), 710; 70 Ga. 368 (1), 377; 116 Ga. 140 (2); 114 Ga. 924, 928; 5 Ga. App. 251; 8 Ga. App. 540 (1), 771; Cooley, Torts (2d ed.), 105, 106.