Wiseberg v. Novelty Hat Manufacturing Co. , 3 Ga. App. 362 ( 1908 )

Hun, C. J.

1. The motion to dismiss the bill of exceptions is denied, on all the grounds stated. Civil Code, §§5565, 5569; Continental Insurance Co. v. Wickham, 110 Ga. 131 (35 S. E. 287); Scott v. Whipple, 116 Ga. 211 (42 S. E. 519); Anderson v. Newton, 123 Ga. 518 (51 S. E. 508); Strickland v. Thornton, 2 Ga. App. 377 (58 S. E. 540); Gleason v. Traynham, 111 Ga. 887 (36 S. E. 969); Taylor v. McLaughlin, 120 Ga. 705 (48 S. E. 203).

2. Recoupment and set-off lie for overpayments, and the motion to strike such plea was properly overruled. Civil Code, §3758; Petit v. Teal, 57 Ga. 145; Bracken v. Dillon, 64 Ga. 244 (37 Am. R. 70).

3. The Supreme Court having held in this case that the contract sued upon was ambiguous, and that parol evidence was admissible to explain such ambiguity, and there being a conflict in the evidence as to* all the material issues, the finding of the court below without the intervention of a jury on questions of fact will not be disturbed. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800 (55 S. E. 923).

Judgment affirmed.

On the second trial the case was again submitted to the judge without the intervention of a jury. The plaintiff moved to strike the defendant’s plea of set-off and recoupment, claiming that the sums paid to him by the defendant were voluntary payments and could not be recovered back. The court refused to strike this plea, and the plaintiff excepted. After hearing the evidence the court rendered judgment in favor of the Novelty Hat Manufacturing Comparijr and against Wiscberg for $92.23, based upon the plea of set-off and recoupment. This judgment is assigned as error, because there was no evidence to support it, and because it was contrary to law. On the material issues in the case the evidence is conflicting.

When the case was called in this court, a motion was made to dismiss the writ of error, on the following grounds: (1) That the bill of exceptions was filed before it was certified and before it was approved. (2) That the brief of evidence was filed before it was either approved or ordered filed. (3) That there is no sufficient assignment of error on the final judgment. The bill of exceptions is dated May 22, 1907. It was filed in the court below on the same day. The judge’s certificate is dated May 23. The bill of exceptions was served May 24. The brief of evidence was filed in the court below on May 22, and approved and ordered filed May 23. The clerk of the court below certified to this court the •original bill of exceptions on June 7, 1907.

HirSch & Haas, for plaintiff. John L. Hopkins & Sons, for defendant.