Atlanta Glass Co. v. Noizet

• Decision Date: 10 November 1891
• Citation: 13 S.E. 833,88 Ga. 43
• Parties: Atlanta Glass Co. v. Noizet.
• Court: Georgia Supreme Court

13 S.E. 833

88 Ga. 43

Atlanta Glass Co. v. Noizet.

Supreme Court of Georgia

November 10, 1891

Syllabus by the Court.

1. A plea which alleges no special damage is to be construed as one which claims general damages only; and where such a plea is improperly stricken, but the defendant is nevertheless allowed the benefit of it on the trial, the error of striking it is not cause for a new trial.

2. Unless it affirmatively appears that evidence is hearsay, it is not to be excluded as such where it is of a nature which admits of its resting on the personal knowledge of the witness.

Error from superior court, Fulton county; Marshall J. Clarke Judge.

Action by L. Noizet against the Atlanta Glass Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Simmons J.

Noizet brought his action against the Atlanta Glass Company "for machinery furnished to it, and work and labor done in making said machinery, in attaching it to the premises of said company, and in repairing other machinery at the works of the company." The defendant filed the plea of the general issue, and several special pleas, denying in one of them that it had purchased the machinery sued for, or authorized any one else to purchase it, and alleging that the plaintiff and one Weyer colluded together for the purpose of defrauding in the matter that he and Weyer were interested as partners in making the machinery; and that, for the purpose of defrauding the defendant, Weyer, who was the defendant's superintendent of the manufacture of glass, gave the orders for the machinery under the pretense that it was needed for the work of the defendant; and that the plaintiff was notified, before the machinery was furnished, not to furnish it, and that Weyer had no authority to order it. In another plea it was alleged that the machinery was furnished with the implied warranty that it was merchantable, and reasonably suited to the use intended, and that the plaintiff knew of no latent defects undisclosed; and the defendant averred that, on the contrary, it was useless. The fourth special plea was as follows: "The retorts and other things specified in the said account, by reason of defects both in the material and construction, had to be continually changed, which caused great detention in the work of manufacturing defendant's glass, owing to which defendant is damaged in the sum of five hundred dollars, which said sum defendant recoups for its damages for same against plaintiff." Another plea alleges that "the items in said account, which is the consideration of the demand sued on, were useless, and of no value for the purposes intended, and that the said consideration has totally failed." The fourth plea above set out was stricken on demurrer. The plaintiff had a verdict, and the defendant moved for a new trial. The motion was overruled, and it excepted. The main grounds relied on for reversal of the judgment of the court below were alleged error in striking the fourth plea of the defendant, and in ruling out certain testimony of Pinson.

1. Treating the plea in question as a special plea of recoupment, the court would have been right in striking it if there had been a special demurrer thereto, and in refusing to allow the defendant to introduce any evidence thereunder tending to show special damages. A plea of recoupment is a cross-action by the defendant against the plaintiff, and should be as certain and definite in its allegations of damage as the allegations in a declaration should be....