31 Ga. App. 37 | Ga. Ct. App. | 1923
The Tennessee Chemical Company sued Ricks, Hill & Brown, a partnership composed of F. A. Ricks, J. G. Hill and T. A. Brown, and the individuals Ricks, Hill, and Brown, for the purchase price of fertilizer alleged to have been contracted for by said partnership through said Brown, one of the partners, and delivered in accordance with the terms of the contract. Two of the alleged partners, Ricks and Hill, filed their plea and answer in four paragraphs, the first two paragraphs being a categorical denial of each paragraph of the petition, and the third and last being as follows: “Further answering, these defendants say: There is no such firm, or partnership, as Ricks, Hill & Brown. They
Plaintiff complains of the court’s refusal to strike the fourth paragraph of the answer: (1) because it failed to deny that Ricks and Hill were members of the partnership- (2) because the allegation that “they received no benefits from said fertilizer” is insufficient in law and is no defense to the action brought; (3) because the allegation that there is not, and never has been, such a partnership cannot be pleaded in an answer, but should have been presented by plea in abatement. “The answer of a defendant will resist a general demurrer or motion to strike, no matter how defective in some respects the answer may be, if it contains any matter of substantial right which the defendant can present by plea.” Tuxworth v. Barber, 21 Ga. App. 748 (1) (94 S. E. 1042). Measured by this rule, grounds 1 and 2 of the motion to strike are not meritorious.
The third ground deserves more consideration. “In determining whether the defense presented consists of several pleas or of only a single plea, the court will look to the substance, and not merely to its form.” Crockett v. Garrard, 4 Ga. App. 360 (1 b) (61 S. E. 552). An examination of the answer filed convinces us that it presents two separate and distinct defenses, (1) a denial of the petition by paragraphs, which has the same effect as the plea of the general issue would have had under the old practice, and (2) a plea of no partnership. See Crockett case, supra, headnote 2. Then, was the plea of no partnership a plea in abatement or in bar? Justice Atkinson, in Bray v. Peace, 131 Ga. 640 (62 S. E. 1026), said: “It is evident, in our opinion, that it is the intention of the law that dilatory pleas shall be expressly filed as such, at the first term of the court, under oath, and that they are to be tried and disposed of before the trial on the merits.” In Crockett v. Garrard, 4 Ga. App. 366 (61 S. E. 552), it was said that such pleas must be pleaded with the greatest strictness. In the light of these authorities it is at least apparent that the defense under considera
Plaintiff further contends that the court erred in not having the jury frame their verdict so as to show upon which plea it was based. It is generally true that “If more than one plea is filed to an action, the court should, upon a timely request from the plaintiff, cause the jury, in case they find for the defendant, to specify upon which one or more pleas the verdict is rendered,” and that “such a request is timely if made before the verdict has been recorded and the jury dispersed.” Crockett v. Garrard, supra. We think, however, that the foregoing rule must be tempered by the rule, that “Paramount to every other consideration is the rule which requires that injury shall concur with error, before the finding of a jury
The criticisms of the court’s charge and the exceptions to the introduction of evidence present no sufficient grounds for a reversal. It was not error to overrule the motion for a new trial.
Judgment affirmed.