Holden, J.
(After stating the facts.)
1. The defendant in error sued out a dispossessory warrant against the plaintiff in error as his tenant, to evict her from the premises known as the New Dublin Hotel, on the ground of nonpayment of rent due as provided in a written contract of lease between the parties. The plaintiff in error filed a counter-affidavit denying that she owed the rent, and gave the required bond. Thereafter she filed an equitable petition to enjoin a trial under the dispossessory warrant and counter-affidavit. One of the grounds upon which she asks for equitable relief is that the writing does not speak the real contract and should be reformed. The writing provides that the plaintiff agrees to pay the defendant as rent $200 per month on the first day of each month in advance, and further provides that the defendant shall, “as early as practicable, enlarge the hotel” by increasing its capacity to approximately 46 rooms above the ground floor, and shall furnish the rooms added, and, in conjunction with, such work, make specified repairs on the property, “the work to be proceeded upon with reasonable promptness and completed as soon as practicable.” After this work is completed, it is provided that the lessee shall pay $325 per month rent. The [154]*154plaintiff contends that the contract should be reformed so as to read that the work of repairs should be proceeded upon- at once and completed by October 1st, 1907, and if not completed by that time, the plaintiff was to pay as rent only $150 per month until the work was completed. She contends that the writing does not speak the real contract, because of mistake on her part and fraud on the part of the defendant in falsely representing to her that the writing contained in effect the contract as agreed upon. Equity will reform a written contract because of a mistake of fact on the part of both parties. Civil Code, §§ 3980, 3981, 3982. In this case, however, the petition, properly construed, does not mean that there was any mutual mistake- of fact. It does not allege that there was any mistake on the part of the defendant as to what the writing contained or meant. The petition asks for reformation on the ground of mistake of fact by the plaintiff and fraud by the defendant. There are cases in which equity will reform a written contract because of mistake of fact on the part of one of the parties and fraud on the part of the other. In the case of Dannelly v. Cuthbert Oil Co., 131 Ga. 694 (63 S. E. 257), it was held: “If a person who was illiterate and could read and understand writing only with difficulty when in his .normal condition, and who, by reason of his physical and mental condition resulting from a personal injury and being under the influence of opiates administered to relieve his pain, was unable to read, was, while in such condition, induced by the fraud of the other party to a contract between them to sign a writing as evidencing such contract, but which in fact omitted some of the material terms thereof, he may maintain an equitable petition to have the writing reformed so as to speak the truth of the agreement made.” It is not alleged in the petition in the case we are considering that the plaintiff was illiterate, or, at the time of the execution of the contract, unable to read. Mistake on the part of the plaintiff as to the contents or meaning of the contract would not of itself authorize a reformation. Such mistake on her part, coupled with fraud on the part of the other party, might do so under some circumstances. But such fraud must be fraud of which the plaintiff has a right to complain. The right to complain of such fraud -does not exist in equity, and no right to the reformation of a written contract exists, where the fraud is such that the complaining party could by reasonable dili[155]*155genee have obtained knowledge of the truth. The Civil Code, § 3983, provides: “In all eases of mistake of fact material to the contract, or other matters affected by it, if the party complaining applies within a reasonable time, equity will relieve.” But the doctrine there announced is qualified by the provisions of the succeeding section (3984), declaring: “If the party, by reasonable diligence, could have had knowledge of the truth, equity will not relieve.” See also Civil Code, § 3974. In the case of Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915), it was held: “In an action upon a contract for the purchase of goods, a plea is demurrable which alleges that the contract contained an item which the defendant did not order; that he signed the contract without' reading it, relying on the statement of the plaintiff’s agent, in whose veracity and honesty he had confidence on account of a long course of previous dealings, that the contract contained only the items agreed on; that he signed the contract at a time when he was busy; and that it was contained in a booklet covering ten or twelve printed pages.” There being in the case in hand no allegation that the plaintiff was unable to read, or was induced to sign the contract by any fraud of defendant other than his representation to her that it contained the contract agreed upon, her failure to read it and being mistaken and misled as to its contents would give her no right in equity to have it reformed. If the plaintiff read the contract, or if it was read to her, but she believed it meant the rent to be paid was to be only $150 per month until the repairs 'were completed, and the repairs were to be completed by October 1st, and this belief was induced by the false representations of the defendant that such was the meaning of the contract, she would not be entitled to its reformation. The contract plainly provides that the plaintiff was to pay the defendant “rent under this lease . . at the rate of two hundred ($200.00) dollars per month,” and that “the lessor shall, as early as practicable, enlarge the hotel” and do certain repair work “in conjunction with the other alterations above referred to. The work to be proceeded upon with reasonable promptness and completed as soon as practicable.” Nothing whatever appears in the contract about the work of repairing the hotel being begun .or completed within or by any definite- time. The plaintiff is presumed to be a person of ordinary intelligence, and a person of less than ordinary intelligence would [156]*156certainly know that the contract, containing no technical words and. couched in ordinary terms of the English language, did not mean what the plaintiff says she was led to believe it meant. The allegations of the petition did not entitle her to a reformation of the written contract.
2.- The plaintiff alleges that the defendant^ by reason of his 'violation of the obligations imposed on him by the contract, has damaged the plaintiff in a sum exceeding the amount due by her to the defendant for rent, a failure to- pay which furnishes the ground upon which the dispossessory warrant was issued; and she asks for.a judgment for such excess. She contends that upon the trial of the dispossessory proceedings she could not obtain a judgment for such excess. She contends, therefore, that in order that all matters arising out of the contract might be adjudicated in one suit, a trial under the dispossessory proceedings should be enjoined, a judgment rendered preventing the defendant from evicting her for the non-payment of rent, and a judgment rendered in her favor for the amount of excess due her by the plaintiff over the amount due by her for rent. In the case of Hall v. Thomas, 42 Ga.
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Holden, J.
(After stating the facts.)
1. The defendant in error sued out a dispossessory warrant against the plaintiff in error as his tenant, to evict her from the premises known as the New Dublin Hotel, on the ground of nonpayment of rent due as provided in a written contract of lease between the parties. The plaintiff in error filed a counter-affidavit denying that she owed the rent, and gave the required bond. Thereafter she filed an equitable petition to enjoin a trial under the dispossessory warrant and counter-affidavit. One of the grounds upon which she asks for equitable relief is that the writing does not speak the real contract and should be reformed. The writing provides that the plaintiff agrees to pay the defendant as rent $200 per month on the first day of each month in advance, and further provides that the defendant shall, “as early as practicable, enlarge the hotel” by increasing its capacity to approximately 46 rooms above the ground floor, and shall furnish the rooms added, and, in conjunction with, such work, make specified repairs on the property, “the work to be proceeded upon with reasonable promptness and completed as soon as practicable.” After this work is completed, it is provided that the lessee shall pay $325 per month rent. The [154]*154plaintiff contends that the contract should be reformed so as to read that the work of repairs should be proceeded upon- at once and completed by October 1st, 1907, and if not completed by that time, the plaintiff was to pay as rent only $150 per month until the work was completed. She contends that the writing does not speak the real contract, because of mistake on her part and fraud on the part of the defendant in falsely representing to her that the writing contained in effect the contract as agreed upon. Equity will reform a written contract because of a mistake of fact on the part of both parties. Civil Code, §§ 3980, 3981, 3982. In this case, however, the petition, properly construed, does not mean that there was any mutual mistake- of fact. It does not allege that there was any mistake on the part of the defendant as to what the writing contained or meant. The petition asks for reformation on the ground of mistake of fact by the plaintiff and fraud by the defendant. There are cases in which equity will reform a written contract because of mistake of fact on the part of one of the parties and fraud on the part of the other. In the case of Dannelly v. Cuthbert Oil Co., 131 Ga. 694 (63 S. E. 257), it was held: “If a person who was illiterate and could read and understand writing only with difficulty when in his .normal condition, and who, by reason of his physical and mental condition resulting from a personal injury and being under the influence of opiates administered to relieve his pain, was unable to read, was, while in such condition, induced by the fraud of the other party to a contract between them to sign a writing as evidencing such contract, but which in fact omitted some of the material terms thereof, he may maintain an equitable petition to have the writing reformed so as to speak the truth of the agreement made.” It is not alleged in the petition in the case we are considering that the plaintiff was illiterate, or, at the time of the execution of the contract, unable to read. Mistake on the part of the plaintiff as to the contents or meaning of the contract would not of itself authorize a reformation. Such mistake on her part, coupled with fraud on the part of the other party, might do so under some circumstances. But such fraud must be fraud of which the plaintiff has a right to complain. The right to complain of such fraud -does not exist in equity, and no right to the reformation of a written contract exists, where the fraud is such that the complaining party could by reasonable dili[155]*155genee have obtained knowledge of the truth. The Civil Code, § 3983, provides: “In all eases of mistake of fact material to the contract, or other matters affected by it, if the party complaining applies within a reasonable time, equity will relieve.” But the doctrine there announced is qualified by the provisions of the succeeding section (3984), declaring: “If the party, by reasonable diligence, could have had knowledge of the truth, equity will not relieve.” See also Civil Code, § 3974. In the case of Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915), it was held: “In an action upon a contract for the purchase of goods, a plea is demurrable which alleges that the contract contained an item which the defendant did not order; that he signed the contract without' reading it, relying on the statement of the plaintiff’s agent, in whose veracity and honesty he had confidence on account of a long course of previous dealings, that the contract contained only the items agreed on; that he signed the contract at a time when he was busy; and that it was contained in a booklet covering ten or twelve printed pages.” There being in the case in hand no allegation that the plaintiff was unable to read, or was induced to sign the contract by any fraud of defendant other than his representation to her that it contained the contract agreed upon, her failure to read it and being mistaken and misled as to its contents would give her no right in equity to have it reformed. If the plaintiff read the contract, or if it was read to her, but she believed it meant the rent to be paid was to be only $150 per month until the repairs 'were completed, and the repairs were to be completed by October 1st, and this belief was induced by the false representations of the defendant that such was the meaning of the contract, she would not be entitled to its reformation. The contract plainly provides that the plaintiff was to pay the defendant “rent under this lease . . at the rate of two hundred ($200.00) dollars per month,” and that “the lessor shall, as early as practicable, enlarge the hotel” and do certain repair work “in conjunction with the other alterations above referred to. The work to be proceeded upon with reasonable promptness and completed as soon as practicable.” Nothing whatever appears in the contract about the work of repairing the hotel being begun .or completed within or by any definite- time. The plaintiff is presumed to be a person of ordinary intelligence, and a person of less than ordinary intelligence would [156]*156certainly know that the contract, containing no technical words and. couched in ordinary terms of the English language, did not mean what the plaintiff says she was led to believe it meant. The allegations of the petition did not entitle her to a reformation of the written contract.
2.- The plaintiff alleges that the defendant^ by reason of his 'violation of the obligations imposed on him by the contract, has damaged the plaintiff in a sum exceeding the amount due by her to the defendant for rent, a failure to- pay which furnishes the ground upon which the dispossessory warrant was issued; and she asks for.a judgment for such excess. She contends that upon the trial of the dispossessory proceedings she could not obtain a judgment for such excess. She contends, therefore, that in order that all matters arising out of the contract might be adjudicated in one suit, a trial under the dispossessory proceedings should be enjoined, a judgment rendered preventing the defendant from evicting her for the non-payment of rent, and a judgment rendered in her favor for the amount of excess due her by the plaintiff over the amount due by her for rent. In the case of Hall v. Thomas, 42 Ga. 179, the tenant filed an equitable petition to enjoin a trial under a dispossessory warrant sued out for the non-payment of rent, and alleged that he had been damaged in a sum exceeding the amount claimed, by reason of the failure of the landlord to keep the premises in a tenantable condition; that the landlord was insolvent, and the tenant, on account of his poverty,, was unable to give the bond and security on filing his counter-affidavit required by law to prevent his eviction under-the warrant. The tenant offered to deposit the monthly rentals in the hands of a receiver to be appointed by the court. The tenant sought to get judgment for the damages pleaded. The court sustained a demurrer to the petition and dismissed the same. It was held in that case that the demurrer to the petition was properly sustained, for want of equity. In the ease of Huff v. Markham, 71 Ga. 555, “Huff filed a bill against Markham, alleging, in brief, that he had leased a hotel from Markham, who had violated the agreements made in such lease, and had failed to make necessary improvements and repairs, causing an expenditure of large sums by complainant; that the defendant had talked among the guests and others having business relations with complainant, injured his credit and business, and by his wrong [157]*157conduct rendered complainant unable to pay the rent as it fell due; that the defendant had sued out a warrant to dispossess him, though on an accounting defendant was in fact largely indebted to him. . . An account and settlement of all matters between the parties, and an injunction to prevent interference with complainant’s possession, were prayed.” It was held that the court committed no error in dismissing the petition on demurrer. Under the decisions above cited, we do not think the plaintiff is entitled to enjoin a trial under the warrant to dispossess her because the defendant is indebted to her by reason of damages caused her by the failure of the defendant to comply with his part of the lease contract, in excess of the amount of rent claimed. See also White v. Lawrence, 133 Ga. 528 (66 S. E. 171). However, it is not expressly stated in the cases above cited whether the tenant can set up his damages against the landlord in the dispos'sessory proceeding, or can only do so in a separate and independent suit for the same. Where a distress warrant is issued, a tenant may replevy the property distrained “by making oath that the same, or some part thereof, distrained for is not due,” and giving the required bond. In such case, the tenant may show that he owes the Iand'lord no rent, by reason of having suffered damage on account of the violation of the lease contract by the landlord. Guthman v. Castleberry, 48 Ga. 172. Where a dispossessory warrant is issued against the tenant because of his failure to pay the rent, he may arrest the proceeding and prevent his removal from the premises by filing a counter-affidavit “that the rent claimed is hot due.” The tenant may in such proceeding recoup and show that he has suffered damages by reason of the violation of the rent contract on the part of the landlord. We quote sections of the Civil Code of 1895, as follows: § 3756. Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract. § 3757. It differs from a set-off in this: The former is confined to the contract on which the plaintiff sues, while the latter includes all mutual debts and liabilities. § 3758. Recoupment lies for overpayments by defendant, or payments by fraud, accident, or mistake.” , And see Norton v. Graham, 130 Ga. 391 (60 S. E. 1049) ; Waring v. Gaskill, 95 Ga. 731 (22 S. E. 659). The [158]*158proceedings by the landlord are begun, and if he prevails on the trial he recovers because of-a violation of the rent contract by the tenant in failing to pay rent thereunder. The tenant can on the trial show by way of recoupment that the “rent claimed is not due,” because of damages due him on account of the violation of the rent contract by the landlord. The right of the landlord to recover possession of the premises and double' rent has its foundation in the fact that the tenant at the time of the issuance of the warrant owed the landlord rent on the lease contract. The tenant can defend by setting up and showing that the landlord owes him damages equal to or exceeding the rent claimed, by reason of a violation by the landlord of the Same contract under which the landlord claims the rent to be due. The landlord claims the rent is due because the tenant violated the contract in failing to pay the rent when due, and the tenant can set up and show he does not owe it because of damages due him by the landlord for violation of the same contract. .
Where the tenant proves such damages and they exceed the amount of rent due, can he, in such proceedings in the superior court, have judgment against the landlord for such excess? We think that he can. This is a case in which recoupment can be pleaded; and the act of 1878 (Acts 1878-9, p.' 147) provides: “And in all cases where, under the laws of this State, recoupment may be pleaded, if the damdges 'of the defendant'shall exceed, in amount, those of the plaintiff,' the defendant shall in such cases recover of the plaintiff the amount of such excess.” As this is a ease in which recoupment may be pleaded, under the express terms of the act of 1878 (now embodied in the latter part of section 3759 of the Civil Code), if the damages of the defendant shall exceed, in amount, those of the plaintiff, the defendant shall in such case recover of the plaintiff the amount of such excess. In the case of Arnold v. Carter, 125 Ga. 319 (54 S. E. 177), Carter sought to enjoin a trial under his áffidavit of illegality to the foreclosure of a mortgage on personalty, on the ground that he had counter-claims against Arnold by way of recoupment, amounting to more than the amount claimed by Arnold to be dué him. The court held that the petition should have been dismissed on- demurrer. On page 322, in the opinion, it was said: “As recoupment may be pleaded in’ a proceeding to foreclose a mortgage on per[159]*159sonalty, it necessarily follows, under the provisions of the act of 1878, that if, in such a ease, the defendant pleads recoupment and proves that his damages exceed the amount which he' owes the plaintiff on the demand secured by the mortgage, the defendant is entitled to a judgment against the plaintiff for the amount of such excess. It follows that Carter could set up, in an affidavit of illegality to the foreclosure of the mortgage in the city court, by way of recoupment, all of his claims' coming within’ the scope' of that defense, such as payment, overpayment, etc.; and if they exceeded the amount of the debt secured by the mortgage, he could recover a judgment against Arnold, the mortgagee, for such excess.” Where a mortgage on pérsonalty is foreclosed, it is provided by Civil Code, § 2765, that “the mortgagor'may file his affidavit of illegality, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due.” There is no express provision of law permitting anything else to be set up in the affidavit. In proceedings to dispossess a tenant for the.' non-payment of rent, the defense which the tenant may set up in his counter-affidavit to arrest the proceeding, namely, “that the amount claimed is not due,” is similar to'that provided for in the affidavit of illegality on the part of the mortgagor. The foreclosure of a mortgage on personalty is not a proceeding to obtain judgment against the mortgagor, but only to sell specific property; just as an eviction warrant to dispossess a tenant is simply a proceeding to eject the tenant and restore the premises to the personal possession of the landlord. The foreclosure of a mortgage on personalty is a statutory and a summary proceeding. Where a dispossessory warrant is issued against a tenant, and no counter-affidavit is filed by him, the result would be simply to eject'the tenant from the premises without the recovery of any judgment or money. If a counter-affidavit is filed by the tenant,' it then becomes a proceeding on the part of the landlord to recover the premises and to obtain a judgment for double the amount of the stipulated rent. It has been held (Pettis v. Brewster, 94 Ga. 527 (19 S. E. 755), that the double' rent thus recoverable is an “incident to á wrongful holding over.” By whatever name 'the double rent recoverable is called, it can not be recovered unless the tenant owed rent at the time of the issuing [160]*160of the warrant, thereby giving the right to issue the dispossessory warrant because of the failure to pay the rent. Upon the trial of the case, in order for the landlord to prevail it would be necessary for him to show that the tenant owed rent when the dispossessory warrant was issued, and it is by showing damages, under a plea of recoupment, that the tenant proves that this rent is not due; and if, under such plea of recoupment, the tenant shows that the landlord is indebted to him for any excess, he should have judgment therefor. Whether the plaintiff could enjoin a trial under the dispossessory proceedings if she could not therein plead recoupment and prevent eviction, or if she could do this but could not obtain judgment for any excess which might be due her, need not be considered. The court committed no error in dismissing the petition on the demurrer thereto.
Judgment affirmed.
All the Justices concur, except