Atlanta Elevator Co v. Mills

• Decision Date: 03 February 1899
• Citation: 32 S.E. 541,106 Ga. 427
• Parties: ATLANTA ELEVATOR CO. v. FULTON BAG & COTTON MILLS.
• Court: Georgia Supreme Court

32 S.E. 541

(106 Ga. 427)

ATLANTA ELEVATOR CO.

v.FULTON BAG & COTTON MILLS.

Supreme Court of Georgia.

Feb. 3, 1899.

Splittino Cause op Action — Action foR Dam-

-ages.

1. A creditor cannot bring an action against his debtor for an amount admitted to be due upon an account resulting from a single contract, the whole debt being mature, thus enforce payment of that amount, and afterwards maintain a second action against the defendant for a balance alleged to be due on the same account in excess of the amount originally sued for; and this is true, although the petition filed in the first case recited that the plaintiff reserved the right to bring such second action.

2. Nor is a second action of the nature above indicated maintainable for the recovery of damages arising from alleged bad faith and liti-giousness on the part of the defendant in refusing to pay, in the first instance, the full amount due to the plaintiff.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by the Atlanta Elevator Company against the Fulton Bag & Cotton Mills. Judgment for defendant, and plaintiff brings error. Affirmed.

The following is the official report: Petitioner sued for $75 principal and $100 attorney's fees, alleging that in 1895 plaintiff contracted to build two elevators for defendant for $1,143.75; that defendant paid, in the early part of 1896, $640.25, and in December, 1896, $473.30, but refuses to pay balance, alleged to be $75; that defendant's refusal to pay was in bad faith; that plaintiff had been compelled to sue for the $473.30 paid in December, 1896; that said suit was defended until the defendant was required to swear to the truth of his defenses; that payment was then made and suit dismissed; that said defenses were filed for delay and vexation, and were intended to constrain the plaintiff, because of its need of money, to accept less than was due to it; that defendant although abundantly able to pay, resorted to every possible pretext to hinder and delay the plaintiff, and, to increase the plaintiff's embarrassment, the defendant procured the creditors of plaintiff to issue garnishments against it, by means of which plaintiff was damaged $100. Plaintiff amended his petition, and alleged that in the suit referred to in the original petition he had sued for only the balance that was admitted to be due, and had expressly reserved the right to sue for balance claimed, and that the amount so sued for was paid without conditions. The petition as amended was dismissed on demurrer.

Alexander & Lambdin, for plaintiff in error.

Glenn, Slaton & Phillips, for defendant in error.

LUMPKIN, P. J. The Atlanta Elevator Company brought an action against the Fulton Bag & Cotton Mills, which was dismissed on demurrer, and the plaintiff excepted. The substance of the plaintiff's petition, the amendment thereto, and the demurrer appears in the official report.

We have no difficulty in reaching the conclusion that the judgment complained of was correct Nothing is better settled than that the measure of damages for refusing to pay money due to another is the interest lawfully accrued. Another well-settled principle...