42 Ga. App. 394 | Ga. Ct. App. | 1930
The Eufaula Bank & Trust Company of Eufaula, .Alabama, as transferee and assignee of Ross Basket Company, a corporation of Alabama, sued Bibb Basket Company, a corporation of Georgia, for the principal sum of $1660, alleged to be due on an open account for baskets shipped by the Ross Basket Company upon an order of the Bibb Basket Company, which account had been assigned to the Eufaula Bank & Trust Company.
The trial judge properly held that the city court of Macon had no jurisdiction to allow a plea seeking damages arising ex delicto as a set-off against an action ex contractu. Sections 4350 and 4351 of the Civil Code are as follows: 4350. “Becoupment is the 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.” 4351. “It differs from a set-off in this: The former is confined to the contract on which plaintiff sues, while the latter includes all mutual debts and liabilities.” A reading of the answer will show that the relief sought by the defendant is not confined to the contract on which the plaintiff sued, but seeks to include a separate and distinct mutual liability. It is, under the above definitions, clearly a plea of set-off. Headnotes 1, 1-a, and 2 of the case of Sammons v. Read Inc., 31 Ga. App. 763 (121 S. E. 855), are as follows: “1. A plea of recoupment is confined to the contract sued upon by the plaintiff, including any cross-obligation or independent covenant arising out of that contract. A plea of set-off is not so confined, but is a defense which
Judgment on main bill of exceptions affirmed; cross-bill dismissed.