Coplan v. Thompson Transfer Co.

Court of Appeals of Georgia

Coplan v. Thompson Transfer Co.

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

CourtCourt of Appeals of Georgia

DecidedSeptember 24, 1912

Docket3755

StatusPublished

Cited by1 cases

This text of 75 S.E. 822 (Coplan v. Thompson Transfer Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coplan v. Thompson Transfer Co., 75 S.E. 822, 11 Ga. App. 488, 1912 Ga. App. LEXIS 75 (Ga. Ct. App. 1912).

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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.

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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.

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Bluebook (online)

75 S.E. 822, 11 Ga. App. 488, 1912 Ga. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coplan-v-thompson-transfer-co-gactapp-1912.

Opinion

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