Williams Manufacturing Co. v. Warner Sugar Refining Co. , 125 Ga. 408 ( 1906 )

Fish, C. J.

(After stating *the facts.) In the view that we-take of this case, there is only one question to be determined, and that is, whether the court erred in directing the verdict in favor of the plaintiff. The defendant did not except to the ruling of the' court which sustained the motion to strike the plea of recoupment. Therefore the question whether the court was right or wrong in this ruling is not before us for consideration. When this plea was. stricken, every vestige of a legal defense to the suit was swept from the case. As the case then stood, the allegation of the petition that the defendant was indebted to the plaintiff upon the account sued on in the amount therein stated was admitted by the defendant, and against this admitted indebtedness and liability'" to the plaintiff the-defendant could offer nothing for the purpose of showing a counterclaim in its favor against the plaintiff, to prevent a recovery by the-latter or to reduce, the amount thereof. All the subsequent proceedings prior to the direction of the verdict in favor of the plaintiff' are immaterial, and the rulings of the court in reference to the' order of the argument and the admissibility of evidence need not. be considered, as they did not affect the merits of the ease one way or another. When the case went to the jury there was practically no issue to try. The plaintiffs claim was admitted, and there was. no need for it to offer evidence to establish it. On the other hand,, the defendant being bound by its solemn admission in judicio, and having no plea before the court and jury under which it could prove a counter-claim against the plaintiff to offset this admission, could not legally introduce any evidence for the purpose of defeating, either in whole or in part, the recovery sought by the plaintiff.. While the trial went on and evidence was offered by both parties for the purpose of showing what the contract was and whether or not the plaintiff had broken it, and the defendant offered evidence to show what its damages were in consequence of the failure of the plaintiff to deliver all of the goods embraced in the contract, yet it is evident that there was nothing left in the pleadings to which any’ of this evidence was germane, unless it be the plea that the plaintiff had broken an entire contract, and therefore was not entitled to recover for a part performance of the same; and as this plea presented no legal defense whatever to the action, it could be disregarded by the court, either by the exclusion of evidence offered h> support it, or by the direction of a verdict in favor of the plaintiff. Crew v. Hutcheson, 115 Ga. 511. That this plea set up no legal defense is evident for two reasons. First, the defendant could not both admit and deny the allegation of its indebtedness to the plaintiff on the account sued on; and as its pleadings are to be taken most strongly against it, it is the admission and not the denial» which must prevail. It admitted that it was indebted to the plaintiff upon the account sued on in the full amount thereof, and upon this admission claimed the right to the opening and conclusion in the case. It could not, in the face of this admission, contend that it had never become liable to the plaintiff in any amount whatever for the goods embraced in this account. Fisher v. Jones Company, 108 Ga. 490. Besides, the plaintiff’s petition was paragraphed in conformity to the pleading act, and under that act the averment, plainly and distinctly made in the petition, that the defendant was indebted to the plaintiff on the account sued on in the amount therein stated, had to be taken as true, unless the defendant expressly denied it, or alleged that for want of sufficient information it could neither admit nor deny this allegation. It could not both admit and deny; for even if the denial could be construed as destroying the force of the admission, the admission would likewise destroy the force of the denial, and the averment of the plaintiff’s petition would have to be taken as true, because of the failure of the defendant to distinctly deny it, or to allege that it was unable to either admit or deny for the want of sufficient information. In the second place, the plea of non-liability because of the alleged entirety of the contract of sale and the failure of the plaintiff to completefy perform it was obviously without merit and frivolous, because the defendant admitted that it had received the goods covered by the account, and it made no offer to return them. The buyer can not accept and retain a portion of the goods embraced in a contract of sale, and at the same time escape liability for the price of such goods upon the ground that the contract was entire and the seller had broken .it by failing to deliver all of the goods. ' Failure upon the part of the seller to completely perform an entire contract of this character would give the buyer the right to rescind the contract; but in order to rescind he would have to return, or, if this were impossible, pay for, the goods which had been delivered to him. He could not keep the goods which he had received under the contract, and at the same time -refuse to pay for them, merely upon the ground that the seller had broken the contract by failing to deliver all of the goods embraced therein. Civil Code, §3712; Miller v. Cotton, 5 Ga. 341; Lane v. Latimer, 41 Ga. 171; Willingham v. Hooven, 74 Ga. 233; Cleckley v. Mutual Fidelity Co., 117 Ga. 466; Strickland v. Parlin, 118 Ga. 213; Harden v. Lang, 110 Ga. 392; Harris v. Daly, 121 Ga. 511.

As the plea relied upon by the defendant, after the plea of recoupment was stricken, was wholly without any legal merit, the court did right to sustain the motion to direct a verdict in the plaintiff’s favor, although this plea had not been demurred to by the plaintiff and the trial had proceeded under it as if it really presented a legal defense to the action. As we have already intimated, a trial judge may, during the progress of the case, treat a plea of this character as a mere nullity and take any necessary and proper step to prevent a finding thereon. "This may be accomplished either by striking the jhea, if a motion is made to this effect, by ruling out evidence which is offered in support of the plea, or, if evidence has been admitted, by directing a verdict for the plaintiff, notwithstanding the plea and the evidence offered in support thereof. A plea which does not set forth anything which is in law a sufficient reason for defeating the right of the plaintiff to recover upon a petition which sets forth a cause of action should not, even if proved to be true, be allowed to have the effect to defeat the plaintiff in his right to recover, provided the plaintiff calls attention to the fact that the plea is bad in substance, during the progress of the trial before verdict, or makes a timely motion after verdict to disregard the verdict finding in favor of the plea; and this is true notwithstanding the plaintiff has passed over the plea which is bad in substance without demurring to the same prior to the trial." Crew v. Hutcheson, 115 Ga. 511, 534. In the case just cited a full, elaborate, and able discussion of this question of practice, and a collation of authorities thereon, will be found in the concurring portion of the opinion which Mr. Justice Cobb delivered for himself and the present writer, from which opinion the language quoted above is taken. We deem the conclusion there reached on this question by the majority of the Justices then presiding to be eminently sound, and to need no further argument in its support.

Judgment affirmed.

All the Justices concur.