RUBEL BAKING COMPANY v. Levitt

Court of Appeals of Georgia

RUBEL BAKING COMPANY v. Levitt

163 S.E.2d 437, 118 Ga. App. 306, 1968 Ga. App. LEXIS 928

CourtCourt of Appeals of Georgia

DecidedSeptember 3, 1968

Docket43811

StatusPublished

Cited by10 cases

This text of 163 S.E.2d 437 (RUBEL BAKING COMPANY v. Levitt) 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.

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RUBEL BAKING COMPANY v. Levitt, 163 S.E.2d 437, 118 Ga. App. 306, 1968 Ga. App. LEXIS 928 (Ga. Ct. App. 1968).

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Opinion

Deen, Judge.

This is an appeal from the denial of plaintiff’s motion for summary judgment which is reviewable by reason of the certificate of the trial court under Code Ann. § 81A-156 (h). Levitt, the defendant distributor, admitted certain items on the open account of Rubel Baking Company and denied others on the ground that the bread arrived in an unsalable condition due to the manner in which Rubel had packaged it. Levitt further counterclaimed under a written agreement under which Rubel was obligated to pay him $40 per week; the agreement was admitted by Rubel who, however, contended that there had been a subsequent oral rescission, and that because of this fact no further amounts were owing. These questions present substantial issues of fact to be determined by a jury, and the denial of the summary judgment was not error. While some of the items sued for are admitted to be owing, the general rule is that where the defendant urges a legally sufficient counterclaim for an amount in excess of the amount demanded in the petition, the denial of the motion in toto will ordinarily be affirmed. Lewis County Savings & Loan Assn. v. Black, 60 Wash. 2d 362 (374 P2d 157); Romick’s International, Inc. v. Interstate Cigar Co., 49 Misc. 2d 851 (268 NYS2d 685); Luders v. Pummer, 152 Cal. App. 276 (313 P2d 38).

Judgment affirmed.

Jordan, P. J., and Pannell, J., concur.

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Deen, Judge.

This is an appeal from the denial of plaintiff’s motion for summary judgment which is reviewable by reason of the certificate of the trial court under Code Ann. § 81A-156 (h). Levitt, the defendant distributor, admitted certain items on the open account of Rubel Baking Company and denied others on the ground that the bread arrived in an unsalable condition due to the manner in which Rubel had packaged it. Levitt further counterclaimed under a written agreement under which Rubel was obligated to pay him $40 per week; the agreement was admitted by Rubel who, however, contended that there had been a subsequent oral rescission, and that because of this fact no further amounts were owing. These questions present substantial issues of fact to be determined by a jury, and the denial of the summary judgment was not error. While some of the items sued for are admitted to be owing, the general rule is that where the defendant urges a legally sufficient counterclaim for an amount in excess of the amount demanded in the petition, the denial of the motion in toto will ordinarily be affirmed. Lewis County Savings & Loan Assn. v. Black, 60 Wash. 2d 362 (374 P2d 157); Romick’s International, Inc. v. Interstate Cigar Co., 49 Misc. 2d 851 (268 NYS2d 685); Luders v. Pummer, 152 Cal. App. 276 (313 P2d 38).

Judgment affirmed.

Jordan, P. J., and Pannell, J., concur.

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163 S.E.2d 437, 118 Ga. App. 306, 1968 Ga. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubel-baking-company-v-levitt-gactapp-1968.

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