145 Ga. 299 | Ga. | 1916
(After stating the foregoing facts.)
There is another reason why the order of reference will not be held improper in this case. To the plaintiff’s action the defendant filed a plea of set-off. In this plea it was alleged, that in March, 1909, the defendant entered into a contract with the plaintiff, whereby the latter was to prepare plans and specifications for and to superintend the construction of certain paving' in the City of Gainesville; that the plaintiff represented to the defendant that he was a skilled engineer, and had experience, and possessed valuable professional knowledge in that kind of construction work; that under these representations he was employed to do the work, the defendant relying upon his skill and ability to have the improvement done in a skillful and satisfactory manner; that the plaintiff employed an engineer who made his surveys in an unskillful manner, and upon the plaintiff’s attention being called to the engineer’s defective work the defendant was informed by the plaintiff that the complaints were unfounded; that the plaintiff allowed the contractor employed by the city to do his work in an unworkmanlike manner and to use inferior material; and that the plaintiff with full knowledge of these facts permitted him to do the work in this manner and consented thereto. After pointing out the defects in the paving, it was averred that the plaintiff had injured and damaged the defendant, by failure to comply with his contract, in the sum of $1,000; and it was prayed that this amount be set off against the plaintiff’s demand, and that the defendant have judgment for the same. The plaintiff demurred to the plea of set-off, on the ground that it set forth a tort, which could not be pleaded as a set-off in a suit based upon a contract. The pleadings were in this state when the case was referred to the auditor. The defendant voluntarily amended its plea by alleging that the plaintiff was insolvent and would not be able to respond to the defendant if it were forced to sue in another and different court and obtain a judgment, and that the defendant would be remediless unless allowed to set off its claim for the plaintiff’s breach of his eon-
Judgment affirmed.