DocketNumber: 23134
Citation Numbers: 49 Ga. App. 664
Judges: Broyles, Guerry, MacIntyre
Filed Date: 9/27/1934
Status: Precedential
Modified Date: 1/12/2023
H. T. Dillon, as trustee for the Keely Company Inc., filed suit against the Continental Trust Company in the municipal court of Atlanta, seeking to recover for goods sold and delivered on open account to the defendant from October 17, 1929, until November 11. The transfer of the account, having been made in writing, was attached to the petition. The defendant duly filed its answer and plea of set-off, which admitted the sum of $40 due on said account, but which sought by way of set-off to obtain credit in the amount of $373.10 (the suit being for $413.50). After hearing the evidence the trial judge, sitting without a jury, allowed in full the plea of set-off and rendered judgment in favor of the plaintiff for the sum admitted to be due, to wit, $40. To this ruling the plaintiff excepted.
The evidence authorized the judge to find substantially the following state of facts: that certain linoleum was bought by the defendant from the plaintiff on January 16, 1929, a part of which, after installation, proved to be defective; that before discovery of the defective condition, and on February 15, plaintiff paid the bill covering this linoleum, which also included other items; that upon discovery of the defective condition of the linoleum it was agreed between plaintiff and defendant that there should be an adjustment with reference thereto, althoxrgh no definite agreement as to the amount was reached at that time; that subsequently, on August 1, 1929, plaintiff ordered, besides other items, additional linoleum, a part of which was used in replacing the defective part; that on October 26, 1929, the bill covering this order was paid, which covered only items purchased before October 1, 1929.
The judge was authorized to find that with reference to the original linoleum there was a failure of consideration. He was also authorized to find that the defendant did not know, nor could by the exercise of ordinary care have known, at the time of paying therefor, of the defective condition of the linoleum. Plaintiff contends, however, that by the payment of the second bill, which included linoleum used to replace that part of the original linoleum which was defective, defendant waived his rights, and can not now set up, in the nature of a plea of set-off, its defective condition. With this contention wé can not agree. The judge was authorized to find that there had been an agreement made between the parties that an adjustment should and would be made with reference to
Judgment affirmed.