48 S.E.2d 474 | Ga. Ct. App. | 1948
1. A defendant may plead matter in defense which has arisen since the suit was filed, if the matter pleaded is germane; but a defendant can not convert an action on contract against him into a damage suit by him against the plaintiff for bringing the action in which the defense is filed.
(a) Ordinarily claims arising ex delicto can not be pleaded against actions ex contractu, unless non-residence or insolvency of the opposite party, or some other exception to the general rule, is alleged.
(b) A plea in the nature of a recoupment is not good where it claims damages not legally recoverable under such a plea.
(c) Exemplary or punitive damages are not allowable in cases arising on contracts.
2. The defendant's amendment to his answer, in which he sought to admit a prima facie case in the plaintiffs, to assume the burden of proof and have the concluding argument, was improperly allowed over the objections of the plaintiffs.
3. It is not necessary to pass upon any special ground not covered by the rulings made.
Before the trial the defendant amended his answer and cross-bill by alleging that the plaintiffs had devised a scheme to deprive the defendant of his share of the profits in the company, and had fraudulently conspired to oust him from the company. He charged a course of conduct on the part of the plaintiffs which he alleged to be fraudulent and which culminated in the sale of the property by the plaintiffs after they had purchased it from the receiver. He prayed for damages (in addition to the $3600 claimed for salary and expenses) in the sum of $11,500, one-half of the difference between $25,000, the amount the partnership owed the plaintiffs when the suit was filed, and $48,000, the amount for which the plaintiffs sold the property; and for $3000 alleged to be one-half of net profits that would have been derived from the completion of contracts held by the partnership when the receiver was appointed, and for $10,000 as punitive damages resulting from the plaintiff's fraudulent scheme perpetrated upon the defendant.
The plaintiffs objected to the amendment of the defendant at the time it was offered, and excepted pendente lite to the overruling of their objections. After the trial of the case, but during the same term of the court, the plaintiffs made a motion in writing to vacate the judgment allowing the amendment and cross-action, which motion was denied, and the plaintiffs excepted to that ruling. The defendant filed another amendment in which he undertook to assume the burden of proof, and have the opening and concluding argument before the jury, on the theory that *322 he had admitted a prima facie case in the plaintiffs. The plaintiffs objected to the ruling of the court allowing this amendment and have excepted thereto. A verdict was returned by the jury in favor of the defendant for $1500. The plaintiffs' motion for new trial on the general grounds, and on several special grounds, was overruled and they excepted.
This appeal was transmitted by the trial court to the Supreme Court and transferred by it to this court. See Overstreet v.Schulman,
Furthermore, the amendment was based on alleged fraud while the action of the plaintiffs was on contract. Ordinarily claims arising ex delicto can not be pleaded against actions ex contractu, unless nonresidence or insolvency of the opposite party or other exceptions not here involved be alleged. Code, § 3-113; McLendon Bros. v. Finch,
If the counterclaim for damages by the defendant grew out of a breach of the contract sued on, and could be asserted as a plea of recoupment, the amendment was not good because it claimed damages not recoverable even under such a plea. "When one partner seeks, by way of recoupment, to have a deduction made from the amount of the claim of the other in the profits, on account of fraud or neglect, or acts of disloyalty to the partnership, whereby the interest of the firm suffered damage, such deduction can not go beyond the amount of the damage proven." Tutt v.Land,
2. The second amendment of the defendant which was allowed by the court over the objections of the plaintiffs, to which they excepted, was an effort to admit a prima facie case in the plaintiffs, and assume the burden of proof, and have the benefit of opening and concluding the argument before the jury. This amendment was based on the first amendment which we hold was improperly allowed and it follows that the second amendment was not good. Furthermore, we do not think the second amendment admitted a prima facie case within the meaning and purpose of the law.
3. The first special ground of the amended motion for new trial relates to the amendment of the defendant undertaking to assume the burden of proof, and has been disposed of by the ruling in division 2. All other special grounds of the motion relate to the charge of the court or to evidence admitted by the court in the light of the amendments to the answer then before the court. Since the amendments were improperly allowed all that took place thereafter was nugatory and it is not necessary to consider these special grounds of the motion.
Under the view that we take of this case, it should be submitted to the jury on the original petition of the plaintiffs and the original answer of the defendant. The defendant claimed in his original answer that the partnership was indebted to him in the sum of $3600 for salary and expenses incurred by him in behalf of the partnership, and he prayed for judgment in that *325 amount against the plaintiffs, or the receiver, with a lien against the property or funds in the hands of the plaintiffs or the receiver. The oral motion of the plaintiffs to strike those allegations and prayers from the answer was properly overruled. While the amendment claiming the damages, as dealt with in division 1, also prayed again for judgment for the $3600, and we are holding that that amendment should have been disallowed, we do not hold that the claim for $3600 should have been stricken. It was contained in the original answer and it was not necessary for the defendant to plead this item again.
Judgment reversed. Sutton, C. J., concurs. Felton, J.,concurs specially.