Burton v. Campbell Coal Co., 36480
| Citation | 97 S.E.2d 924,95 Ga.App. 338 |
| Decision Date | 27 February 1957 |
| Docket Number | No. 1,No. 36480,36480,1 |
| Parties | R. F. BURTON v. CAMPBELL COAL COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court erred in denying the motion for new trial.
R. F. Burton, trading as R. F. Burton Company, brought an action against Compbell Coal Company to recover a balance of $3,018.79 allegedly due for services rendered beginning March 11, 1955 for the defendant in connection with the construction of a 'Ready Mix Concrete Plant' at East Point, Georgia. The defendant denied that it was indebted to the plaintiff, and by way of a plea of recoupment alleged, that while it was engaged in the construction of a concrete mixing plant the plaintiff contracted with it to install a conveyor system to be used in the removal of sand, gravel, and other like products from reilroad cars to bins from which the same could be removed to an elevated receptacle where such products would be converted into ready mixed concrete, that prior to March 11, 1955 the defendant entered into an agreement with the plaintiff for the complete erection and installation of such conveyor system, but that because of the unskillful and improper manner in which the plaintiff did certain of the work in connection with the construction of such conveyor system the system was damaged in the amount of $2,696.63. On the trial the plaintiff made an oral motion to strike the 'plea of recoupment' because it did not set up a cause of action upon which a recovery could be had by recoupment and by way of defense against his action. The trial judge, who heard the case without the intervention of a jury, denied this motion and entered judgment for the defendant. The plaintiff filed a motion for new trial on the usual general grounds, which he later amended so as to include several special grounds. The amended motion for new trial was denied, and it is to this judgment that the plaintiff excepts, as well as to the judgment overruling his oral motion to dismiss the defendant's plea of recoupment.
Wilson, Branch & Barwick, John W. Wilcox, Jr., John E. Branch, Atlanta, for plaintiff in error.
Moise, Post & Gardner, R. Emerson Gardner, Charles F. Barnwell, Atlanta, for defendant in error.
1. Code, § 20-1311 defines recoupment as: 'Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract,' and under Code, § 20-1312 recoupment is confined to the contract on which the plaintiff's suit is brought, and does not include all mutual debts and liabilities as does set-off. Code, § 20-1314 sets forth the actions in which recoupment may be pleaded:
Therefore, since the defendant's plea of recoupment in the present case seeks to recoup against the plaintiff's action on the contract with a plea that it, the defendant, was forced to spend a certain amount of money to have the conveyor system, which the plaintiff erected under the contract, repaired due to the unskillful and improper manner in which the plaintiff did certain of the work, the trial court did not err in denying the motion to strike the plea of recoupment. See Allied Enterprises, Inc., v. Brooks, 93 Ga.App. 832, 93, S.E.2d 392.
2. Special ground 4 of the motion for new trial complains of a ruling on pleadings and is not a proper ground of a motion for new trial. Ray v. Wood, 93 Ga.App. 763, 92 S.E.2d 820, and citations.
3 Special grounds 2 and 3 complain of the rejection of certain documentary evidence offered by the plaintiff. An examination of these special grounds shows that the evidence in one special ground was the preliminary specifications of the work to be done by the plaintiff, but not the specifications on which the contract between the parties was finally entered into, and the other evidence was an excerpt from a manual mentioned in the preliminary specifications but not in the final specifications on which the contract was based, nor was there any evidence that the excerpt from the manual was such a custom that would have authorized its introduction in evidence.
This evidence would have had no bearing on the actual contract between the parties and was therefore irrelevant to the issue tried, and the trial judge did not err in sustaining the objections to its introduction.
4. Special ground 1 assigns error on the admission in evidence of a...
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