DocketNumber： 19243
Citation Numbers： 39 Ga. App. 144
Judges： Bloodworth, Broyles, Luke
Filed Date： 1/16/1929
Status： Precedential
Modified Date： 1/12/2023
The Investment Corporation of Savannah brought, trover against W. B. Jordan in the city court of Savannah for an automobile. Not having been replevied, the automobile was sold by order of court, and brought $515. The defendant’s amended answer was stricken on motion, and he excepted pendente lite to the judgment striking it. After the introduction of evidence, the
The trover action was brought in the usual form, and the answer and plea to the petition, by paragraph, was substantially as follows: (1) Paragraphs 1, 2, and 3 of the petition are denied. (2) On January 28, 1926, T. P. Saffold, president of the plaintiff corporation, made an agreement with the defendant “whereby said Saffold agreed to pay him ten per cent, on all lots sold” on a designated tract of land belonging to the plaintiff, agreeing to advance the defendant $100 per month as a drawing account, which was to be repaid from “sales to be made by him when the property was placed on the market.” (3) Said Saffold, as president of the plaintiff corporation kept stating to defendant that “very shortly the lots would be put on the market,” but always failed and refused to do so; and the defendant expended $92 “in procuring a list of prospects, at the direction of Mr. Saffold, to be seen and lined up on sales, so that all of the ground work could be completed when the lots were put on the market; this amount also being advanced to be repaid from sales to be made by him when the lots were put on the market.” (4) “Defendant owned a Buick sedan on which all of the purchase-price had been paid except $773.28. The said Saffold agreed to advance the said balance which was due the General Motors Acceptance Corporation, to complete the payment of the purchase-price on said Buick sedan, and to charge it against the defendant, to be considered as a portion of the drawing account, and to be repaid by said defendant from sales to be made by him on said Colonial Estate lots when the same were placed on the market. . . In this connection, plaintiff had defendant execute to it a bill of sale covering said automobile, as security therefor in case of the death of the defendant prior to his sale of said lots.” (5) “Defendant shows that by reason of his contract had with the plaintiff corporation, the amount advanced on the automobile is not due or payable, for the reason that said plaintiff corporation, acting by and through its- president, T. P. Saffold, has failed and refused to put the said Colonial Estate lots on the market and to give the defendant an opportunity to close
Jordan, Dr.
“To damages sustained by breach of contract,......$20,750.00
“To 10% com. Fred A. Davis lot, $7,500.00........ '750.00
“To 10% com. Henrick Wallin lot, $17,500.00..... 1,750.00
“To 10% com. Arthur T. Comer lot, $17,500.00.... 1,750.00
“To mailing list for prospects, adv., etc., as shown on books of the plaintiff.......................... 92.00
$25,092.00
“Or. Drawing account 10 months.................$ 1,000.00
“Amount advd. on automobile per agreement....... 773.80
*147 “Amount advd. on mailing-list .................. 92.00
$ 1,865.80
“Balance ................................... $23,226.20”
The following amendment to paragraph 4 of the plea was allowed : “which said bill of sale was subject to the conditional sales contract executed by him to the East Coast Motor Company, of West Palm Beach, Ela., the party from whom the said automobile was purchased, which said contract was by them transferred to the General Motors Acceptance Corporation, and in turn by them transferred to the plaintiff, and is the instrument under which the plaintiff holds title to the said automobile by reason of their having advanced the balance due thereon for the account of defendant upon the terms above set forth.”
The plaintiff’s demurrer and motion to strike the defendant’s answer follows: “Now comes the plaintiff in the above-stated case and demurs to and moves to strike the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs of the defendant’s answer, on the ground that same constitute no valid defense to this action of trover.”
The court’s judgment upon the demurrer was: “I have come to the conclusion that, construed with reference to the prior law and the context, that section 4484 of the Code is not broad enough to authorize the defense and counterclaim set out in the paragraphs (including the amendment thereto) sought to be stricken by the foregoing motion, and accordingly the motion is sustained and said paragraphs of the answer are hereby stricken.”
Section 4484 of the Civil Code (1910), which is a codification of the act of 1903 (Ga. L. 1903, p. 84), reads: “When personal property is sold and the vendor retains the title thereto in himself until all the purchase money is paid, and the vendor or his assigns has brought or may hereafter bring suit to recover the possession of such personal property, the defendant in such action may plead as set-off any demand or claim that he may have against the plaintiff, or may recoup any damages that he has sustained by reason of any failure of consideration, or any defects in such personal property, or any breach of contract by the plaintiff, whereby the defendant has, in any way, been injured or damaged. If the plaintiff elects to take a money judgment for the value of such property,
The defendant in error contends that the statute is only applicable to eases brought by “the vendor or his assigns.” We think that the -statute is sufficiently broad to include not only the immediate assignee of the vendor, but also the assignee of such assignee, and that the plaintiff in error had the right to interpose any defense allowable under the statute.
It is further contended that the statute was not punctuated properly, and that a comma should be inserted after the word “damages” and before the word “that,” so that it would read: “The defendant in such action may plead as a set-off any demand or claim that he may have against the plaintiff, or may recoup any damages, that he has sustained,” etc; and that when so punctuated and properly construed, the statute is applicable only to “such . claims or demands against the plaintiff as grow out of the contract of purchase.”
This section of the code is punctuated as was the original act, and it can not be fairly concluded that the “missing comma” was left out by inadvertence or error.
Eecoupment lies where the demands arise out of the same transaction, whereas set-off is not so confined, and “includes mutual debts and liabilities.” See Civil Code (1910), § 4351. We do not believe .that the lawmakers were oblivious of this difference when they entitled the act of 1903, “An Act to allow defendants in certain trover cases to plead set-offs, or to recoup in damages where suits have been brought to ¡recover possession of personal property; to provide the manner in which such set-offs ox damages are allowed, and for other purposes;” or when they clearly gave the defendant the right to “plead as set-off any demand or claim that he may have against the plaintiff.” Furthermore, the language quoted from
We see nothing in the cases of Rogers v. Otto Gas Engine Works, 7 Ga. App. 587 (67 S. E. 700), and Finance Co. of the South v. Jones, 33 Ga. App. 94 (125 S. E. 510), that militates against the conclusion we have reached.
Counsel contends in his brief that in any event the amended plea sets out no defense, for the reason that one Saffold, and not the Investment Corporation of Savannah, both made and breached the alleged contract with the defendant for the sale of lots. The demurrer points out no defect in the pleading, and, considering the amended answer as a whole, it was sufficient' to withstand the demurrer interposed. ‘ .
Our conclusion is that the act under consideration allows the defense of set-off, and that, as against the demurrer and motion to dismiss, the amended plea set up a defense to the action and should not have been stricken. Having reached this conclusion, it is not necessary to consider any other question raised by the record.
Judgment reversed.