Chappell v. F. A. D. Andrea Inc

• Decision Date: 06 November 1933
• Docket Number: No. 23261.,23261.
• Citation: 171 S.E. 582,47 Ga.App. 816
• Parties: CHAPPELL. v. F. A. D. ANDREA, Inc.
• Court: Georgia Court of Appeals

47 Ga.App. 816

171 S.E. 582

CHAPPELL.

v.F. A. D. ANDREA, Inc.

No. 23261.

Court of Appeals of Georgia, Division No. 2.

Nov. 6, 1933.

Syllabus by Editorial Staff.

Error from City Court of Americus; James W. Smith, Judge.

Suit by Allen Chappell against P. A. D. Andrea, Inc. To review a judgment dismissing his case, plaintiff brings error.

Affirmed.

Hollis Fort and R. L. Maynard, both of Americus, for plaintiff in error.

Jones, Johnston, Russell & Sparks, of Macon, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, J.

All rights of the parties to a litigation which have accrued under a contract must be litigated and adjudicated in one action. Evans v. Collier, 79 Ga. 319, 4 S. E. 266. All breaches of a contract occurring up to the commencement of an action for a breach thereof must be included therein. Civil Code (1910) § 4389. There cannot be subsequent actions for breaches which have already occurred, though they were not included in the first suit. Macon & A. R. Co. v. Garrard, 54 Ga. 327, 328; Willingham v. Buckege, etc., Co., 13 Ga. App. 253, 79 S. E. 496. This principle is based upon the doctrine of former recovery in accordance with section 4335 of the Civil Code (1910). All breaches of the contract up to the commencement of the former action and the amount due the complaining party therefor are conclusively presumed to have been included in the first action. Evans v. Collier, supra. These principles are applicable where the defendant pleads the breach of the contract in a set-off or recoupment against the plaintiff. Desvergers v. Willis, 58 Ga. 388.

2. "While a plaintiff cannot, by bringing a suit, force the defendant to litigate any claim which the defendant may have against the plaintiff by way of set-off, and which is not a matter purely defensive to the suit filed by the plaintiff, yet, where such defendant seeks by way of set-off to recover against the plaintiff upon an alleged contract, such litigation will adjudicate all the rights of the parties which at the time had accrued under the contract." Jones v. Schacter, 29 Ga. App. 132 (3), 114 S. E. 59, 60.

3. The defendant in the present action sued the plaintiff herein on account. The latter filed a plea and denied liability, and filed also a cross-action claiming damages for the breach of an alleged contract between the parties. The defendant in the present case demurred to the cross-action and to certain parts of the answer. The court sustained the demurrer, struck the cross-action and portions of the answer demurred to, and directed a verdict for the plaintiff in that case. This court affirmed that judgment. Chappell v. F. A. D. Andrea, Inc., 41 Ga. App. 413, 153 S. E. 218. The contract involved in that case, for a breach of which damages were sought, was entered into in September, 1925. The alleged breach occurred in December, 1926. The defendant paid the judgment to a deputy sheriff of the court in which it was rendered, and then sued out an attachment, based on the nonresidency of the plaintiff in the former case, and had garnishment based thereon served upon such deputy sheriff. In his declaration ...