Southland Knitting Mills v. Tennille Yarn Mills , 1908 Ga. App. LEXIS 530 ( 1908 )

Powell, J.

(After stating the facts as above.)

While, by the Civil Code, §5065, the defendant may file contradictory pleas, yet even contradictory pleas may be so related to one another that a finding in favor of one of them will make a consideration of the others unnecessary, and will render alleged errors affecting only the other pleas immaterial. Compare Realty Co. v. Ellis, ante, 402 (61 S. E. 833 (5)). If , the parties have settled their differences by a new contract, the defendant who has pleaded that settlement and has taken a set-off of damages as a benefit is certainly precluded by every consideration of law and of equity from asserting any claim to a further diminution of the plaintiff’s recovery because of the alleged damages which constituted the very consideration of the contract of settlement. Timmerman v. Stanley, 123 Ga. 850 (51 S. E. 760, 1 L. R. A. (N. S) 379); Parker v. Riley, 21 Ga. 427 (2). There was no error in charging the jury that if this plea was determined in the defendant’s favor, they should not consider the other pleas. If the deduction made by the verdict from the amount of the plaintiff’s account was based upon the plea of settlement, and not upon the other pleas, it follows that the alleged errors in the rejection of testimony offered in support of the. other pleas are immaterial and harmless; but the verdict being general in terms, it does not expressly appear upon what plea it is founded. We think, however, it can be asserted with reasonable certainty, in the light of the pleadings and the evidence, that it is a finding in favor of the plea of settlement. The amount deducted by it is $332.78. It is not a finding under the first plea, for the court excluded the testimony offered in support of that defense. It does not appear to be based on the second plea, for only two witnesses testified as to this; according to one of them the shortage amounted to enough to have required a deduction of more than $600, and according to the other there was no shortage at all. The sum allowed does not exactly correspond with the sum claimed in the third plea, nor with the proof submitted under it. Looking through the record for an explanation, we find that by multiplying 10,054 by 3.31 cents, the sum deducted by the jury, $332.78, results. Now in the plea of settlement the words “10,054 pounds” appear, and in the context are immediately preceded by the words “amount of yarn undelivered at that time;” and in the same plea the damage per pound for failure to deliver the yarn under the settlement is alleged at 3.31 cents. A fuller study of the context shows that the time referred to was the date of making the alleged contract of settlement and not the later date when the delivery should have been completed thereunder. It is plain that the jury intended to give damages upon this plea, but that they erroneously used the wrong multiplicand in making their calculation. Making the calculation for ourselves, we find that under the testimony of the defendant’s secretary and treasurer, who was its witness on this point, the undelivered balance of the 19,874 pounds of yarn was slightly less than 10,000 pounds, and that the verdict is therefore a few dollars more favorable to the defendant than the proof warranted. The error being in favor of 'the complaining party, the judgment will not be reversed.

Judgment affirmed.