RUBEL BAKING COMPANY v. Levitt , 118 Ga. App. 306 ( 1968 )

118 Ga. App. 306 (1968) 163 S.E.2d 437

RUBEL BAKING COMPANY
v.
LEVITT.

43811.

Court of Appeals of Georgia.

Argued July 3, 1968. Decided September 3, 1968.

Powell, Goldstein, Frazer & Murphy, Robert R. Harlin, James H. Keaten, for appellant.

Wills, Norvell & Loomis, Ray C. Norvell, for appellee.

DEEN, Judge.

This is an appeal from the denial of plaintiff's motion for summary judgment which is reviewable by reason of the certificate of the trial court under Code Ann. § 81A-156 (h). Levitt, the defendant distributor, admitted certain items on the open account of Rubel Baking Company and denied others on the ground that the bread arrived in an unsalable condition due to the manner in which Rubel had packaged it. Levitt further counterclaimed under a written agreement under which Rubel was obligated to pay him $40 per week; the agreement was admitted by Rubel who, however, contended that there had been a subsequent oral rescission, and that because of this fact no further amounts were owing. These questions present substantial issues of fact to be determined by a jury, and the denial of the summary judgment was not error. While some of the items sued for are admitted to be owing, the general rule is that where the defendant urges a legally sufficient counterclaim for an amount in excess of the amount demanded in the petition, the denial of the motion in toto will ordinarily be affirmed. Lewis County Savings & Loan Assn. v. Black, 60 Wash. 2d 362 (374 P2d 157); Romick's International, Inc. v. Interstate Cigar Co., 49 Misc. 2d 851 (268 NYS2d 685); Luders v. Pummer, 152 Cal. App. 276 (313 P2d 38).

Judgment affirmed. Jordan, P. J., and Pannell, J., concur.