Davis v. Crane Company

7 S.E.2d 783, 62 Ga. App. 334, 1940 Ga. App. LEXIS 653

• Court: Court of Appeals of Georgia
• Decided: February 22, 1940
• Docket: 27949.
• Status: Published

Opinion

Broyles, C. J.

1. '“In actions for tlie recovery of unliquidated demands, a bill of particulars shall be annexed to the copy served on the defendant; and in every case where the plea of set-off shall be filed, a copy of the set-off shall be filed at the time of filing the answer.” (Italics ours.) Code, § 24-3310.

2. '“In all cases of mutual debts and set-offs, where the jury shall find a balance for the defendant, such defendant may enter up judgment for the amount. . . Provided, such defendant shall, at the time of filing his answer, file therewith a true copy or copies of the subject-matter of such set-offs.” (Italics ours.) Code, § 39-606.

3. “Every plea of set-off must set out the demand as plainly as if sued on.” Code, § 81-801.

Decided February 22, 1940. Rehearing denied March 23, 1940. John L. Tison, Forest G. Oates Jr., for plaintiff. J. A. Wright, Henry A. Stewart, for defendant.

4. In the instant case the plaintiff sued the defendant on an open account. The defendant in his amended answer admitted that he was indebted to the plaintiff in the amount sued for, $102.79, but alleged that the plaintiff was indebted to him “in the sum of $120 as commissions due to defendant by plaintiff for the merchandise sold and furnished to the Cedartown Textile Inc. of Cedartown, Georgia, under an oral agreement had with defendant to allow defendant a commission of 15% on the goods sold to said Cedartown Textile Inc.” The defendant, however, did not at the time of filing his answer, or afterwards, file a bill of particulars. Therefore the court did not err in striking the answer on an oral motion by counsel for the plaintiff, or thereafter in directing the verdict in favor of the plaintiff for the amount sued for.

Judgment affirmed.

Maelntyre <md Guerry, JJ., concur.