Ozburn v. Dunlap Milling Co. , 155 Ga. 336 ( 1923 )

Gilbert, J.

The court did not err in sustaining the general demurrer and dismissing the petition for want of equity. The petition shows that if the defendant was entitled to recover he had an adequate remedy at law. Whether or not the petitioner was entitled to recover by-reason of the facts alleged it is not necessary to decide. If, however, such facts were sufficient to entitle him to a recovery, such recovery could not be based upon the theory of a tort, but, under the allegations,' would arise out of the guaranty in the contract of storage; and such set-off could be pleaded in the city court of Atlanta.

Judgment affirmed.

All the Justices concur. W. J. Davis, Jr., G. H. Calhoun, and W. B. Cody, for plaintiff. Smith, Hammond & Smith, for defendant.