White v. Bailey & Co.

Lumpkin, J.

Bailey & Company sued out an attachment against White, for the purchase-money of a logging machine and other personal property bought by the defendant under a written contract. They also sued out a second attachment against him for the pur•chase-money of certain cattle and other personal property, bought under another written contract- Both were returned to the city •court of Dublin. To the second suit the defendant pleaded only a denial of indebtedness and a partial payment. To the first suit he pleaded certain payments, and also that the consideration of the contract sued on was another contract, entered into by him and one Zachary on one side and the plaintiffs on the other, whereby he and Zachary were to saw and ship certain lumber for the plaintiffs on the terms specified in the contract with them; that plaintiffs had committed various breaches of that contract, had failed to make payments in accordance with it, had taken possession of lumber and failed to make a report of it, and had committed various other breaches. The defendant sought to set up these alleged breaches of the contract with him and Zachary by way of recoupment or set-off against the suit brought against him. He also alleged that he had offered to rescind the contract between him and the plaintiffs, which offer had been refused, and that the consideration had failed. He prayed for a judgment against the plaintiffs. He then filed an equitable petition in the superior court, alleging that the plea involved the granting of affirmative equitable relief of which the city court had no jurisdiction, and prayed that injunction be granted to prevent both of the attachments from proceeding, that they be removed to the superior court and consolidated, and the issues involved be there tried. Zachary was not a party, nor did it appear what were the respective interests of him and White. Under these facts, there was no equity in the petition, and it was properly dismissed on demurrer.

Judgment affirmed.

All the Justices concur.