Standhardt v. Hardin , 145 Ga. 147 ( 1916 )

Lumpkin, J.

(After stating the foregoing facts.) The present plaintiff’s cause of action against the defendant, as alleged, was one sounding in tort. He brought suit upon it as such in the city court of Atlanta, a court having jurisdiction to try it. The defendant’s cause of action against the plaintiff was one arising on a contract, express or implied, for the recovery of a fee claimed to be due to him for services as a surgeon. The general rule is that a claim for damages arising from a tort can not be set off against one based on a contract. To this rule some exceptions have been made in cases involving special circumstances, such as insolvency or non-residence of the plaintiff against whom the set-off is desired to be established, which renders-an appeal to a court having equitable jurisdiction proper in order to get the benefit of the set-off and to have complete relief. Civil Code (1910), §§ 5521, 4350, 4351, 4353; Ingram v. Jordan, 55 Ga. 356; McKleroy v. Sewell, 73 Ga. 657; Hecht v. Snook & Austin Furniture Co., 114 Ga. 921 (41 S. E. 74); Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648 (74 S. E. 279); Johnson v. Reeves, 112 Ga. 690 (37 S. E. 980). In this ease no such circumstances are made to appear. The present defendant brought, in one court, against the present plaintiff an action based on contract. The present plaintiff brought suit, in another court, against the defendant. He did not sue for any breach of contract, but for a tort. He now wishes to go into the superior court, by an equitable suit, and have the controversies tried there. The ease is unlike that of English v. Thorn, 96 Ga. 557 (23 S. E. 843), where a suit was brought on a contract in a court having no equitable jurisdiction, and it was necessary for the defendant to obtain a reformation of the contract in order to let in his defense.

There was no error in refusing to grant the interlocutory injunction.

Judgment affirmed.

All the Justices concur.