30 Ga. App. 303 | Ga. Ct. App. | 1923
This was a suit on open account, to recover a balance due on the purchase-price of certain shipments of coffee. The defendant admitted the receipt of the goods and -liability therefor at the price named in the petition, but by its plea as amended sought to set up by way of recoupment damages arising
On the trial of the case the defendant submitted evidence going to show a breach by the plaintiff of its said special promises and agreements, but after a careful examination of the record we are unable to find any evidence introduced or offered by which the amount of coffee remaining on hand and its value at the time the suit was brought could be ascertained. The defendant did not introduce or offer any testimony going to show the value of the services, the advertising, or the urns, which the plaintiff had agreed and failed to furnish; nor did it introduce or offer to introduce any evidence going to show any expenses incurred by it in performing these duties, which under the terms of the alleged contract were incumbent upon the plaintiff. It did not introduce 'or offer to introduce any testimony in support of its plea as originally amended, going to show how or when or at what price
The judge did not err in striking the defendant’s amendment, by which it sought to set up a rescission of the contract sued on, on account of the fraud of the plaintiff. The allegations, being merely to the effect that the plaintiff did not intend to perform its promises and agreements, did not set forth specific acts such as in law can constitute fraud. Parrott v. Smith, 135 Ga. 329, 332 (69 S. E. 552); Jones v. Fuller, 27 Ga. App. 84 (4) (107 S. E. 544); City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (3) (65 S. E. 315).
In our opinion the plaintiff’s demurrer to the plea of recoupment as first amended should have been sustained, as was subsequently done with reference to the 4th amendment modifying it, since the plea was confined to an attempt to recover special damages (Wright v. Smith, 128 Ga. 432 (3), 57 S. E. 684), which were not such as could form the basis of a recovery. Civil Code (1910), § 4394; Vischer v. Talbotton R. Co., 34 Ga. 536, 542; Gore v. Malsby, 110 Ga. 893 (2, 3) (36 S. E. 315); Mountain City Mill Co. v. Cobb, 124 Ga. 937, 939 (53 S. E. 458); Orr v. Farmers Warehouse Co., 97 Ga. 241 (4) (22 S. E. 937); Sanderlin v. Willis, 94 Ga. 171 (3) (21 S. E. 291); Williams Mfg. Co. v. Schofield’s Sons Co., 21 Ga. App. 23 (2), 27, 28 (93 S. E. 527); Thornton v. Cordell, 8 Ga. App. 588 (4) (70 S. E. 17); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (4), 581, 587 (96 S. E. 437). Were we to consider the entire plea as subject to general demurrer, the proper disposition of the case would be to reverse the judgment overruling the demurrer upon the plaintiff’s cross-bill of exceptions, and to dismiss the defendant’s main bill of exceptions, thereby affirming the judgment in favor of the plaintiff. Martin v. Harwell, 115 Ga. 156 (1), 157, 158 (41 S. E. 686); Hill v. Ga. State Asso., 120 Ga. 472 (2), 474, 475 (47 S. E. 897); Rives v. Rives, 113 Ga. 392 (1) (39 S. E. 79); Andrews v. Kinsel, 114 Ga. 390 (1) (40 S. E. 300, 88 Am. St. Rep. 25); Phillips v. Bridges, 20 Ga. App. 489 (2) (93 S. E. 115). But dealing with the plea on the assumption that it was not'totally bad in substance, especially in view of the second amendment, hot demurred to, setting up an offer to return the unsold goods, and claiming by way of recoupment the difference
The verdict directed in favor of the plaintiff should be upheld, for the reason that, under none of the evidence introduced or offered, was there any proof of the amount of goods on hand and the market value thereof at the times alleged in the original and amended pleas of recoupment, to support the measures of damages thus' actually claimed, nor any proof of any other damage sustained, which might have been alleged, such as could form the basis of a legal recovery under the evidence. Thus, under the original plea as first amended and subsequently sought to be modified by the fourth or final amendment, claiming the difference between the invoice price and the market price of the goods remaining on hand, there was not only an absence of proof going to show how or when or at what price such remaining stock could or would have been sold had the plaintiff complied with the terms of its agreement, but no proof was introduced or offered by which the amount of coffee and its market value thus remaining on hand could be arrived at; nor was any testimony introduced or offered in support of the second amending plea claiming the difference between the invoice price and the market price as of the date that the plaintiff is alleged to have refused the defendant’s offer to return the goods,— October 28, 1920. The defendant having thus failed to submit any definite data by which the measure of damages could be arrived at on the basis of its pleas, and having failed to offer any testimony showing the value of the services, the advertising, or the urns, which the plaintiff had failed to furnish under its alleged contract, or any testimony showing any expenses incurred by it in performing such alleged duties, the verdict as directed for the plaintiff was demanded.
Judgment affirmed on main bill of exceptions; cross-bill dismissed.