9 Ga. App. 555 | Ga. Ct. App. | 1911
The petition was as follows:
“To the City Court of Macon:
“The petition of Carolina Portland Cement Company of Atlanta, Georgia, Fulton countjq respectfully shows:
“(1) That W. J. Marshall of Bibb county, Ga., is indebted to plaintiff in the sum of ninety-three dollars and fortjr-eight cents (93.48), besides interest, upon an open account, which he,-said. W. J. Marshall, refuses to pay, copy of which is hereto attached.
“ (2) That the said W. J. Marshall has not paid the- same nor any part thereof.
“Wherefore petitioner prays that process may issue requiring the*557 said W. J. Marshall to be and appear at the next term of said court to answer petitioner’s complaint.”
To this was attached a sworn statement of account as follows: W. J. Marshall, Lizella, Ga.,
Bought of Carolina Portland Cement Company.
1908.
May 11. 106 bbl. standard cemept in cloth. 1 90 201 40
424 sx........................ 10 42 40
243 80
Less frt. Sou. 36,280............. 60 42 183 38
Cr.
Oct. 7. By cash ..................... 50 00
Nov. 30. By 399 mt. sacks returned..... 10 39 90 89 90
93 48
In the first paragraph of the defendant’s answer “defendant denies paragraph 1 of plaintiff’s petition, except that he admits that he is a resident of Bibb county, Ga.; also defendant admits that he refused to pay the said $93.48, as alleged in said paragraph 1. Defendant admits paragraph 2 of plaintiff’s • petition.” The defendant then proceeds to set up in his own behalf an affirmative issue by alleging the breach of an express warranty, and that by reason of the breach he was damaged in various particulars to an amount specified in the answer: but in paragraph 4 of the answer he admits that he bought the cement and used it. The effect, then, of the defendant’s answer, while in a sense he denied the indebtedness by reason of the fact that he claimed that the plaintiff owed him more than he owed it, was to admit every fact necessary to be proved by the plaintiff in order to establish its case. He admitted that he resided in Bibb county; that he received the cement; that the contract price was that set forth in the declaration; that he used the cement, and that he had refused to pay for it. It is clear that, unless he established the affirmative defense he was attempting to set up by way of recoupment, the plaintiff must inevitably recover. Therefore the burden of proof was cast upon him; and the plaintiff, not being required to maintain the affirmative of the proposition, was relieved of the necessity of offering any testimony in support of its case as laid.