Ingram v. Jordan

• Citation: 55 Ga. 357
• Parties: John R. Ingram, plaintiff in error. v. Green H. Jordan, defendant in error.
• Decision Date: 31 July 1876
• Court: Georgia Supreme Court

55 Ga. 357

John R. Ingram, plaintiff in error. v. Green H. Jordan, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

*Set-off. Damages. Torts. Promissory notes. Before Judge James Johnson. Taylor Superior Court. April Term, 1875.

Reported in the opinion.

E. H. Worrill; Peabody & Brannon, for plaintiff in error.

W. S. Wallace; Blandford & Garrard, for defendant.

Bleckley, Judge.

The action was upon a promissory note, given by the defendant and payable to the plaintiff or bearer. Besides other pleas, the defendant filed three pleas, called in the record the 3d, 4th and 5th, which were demurred to. The demurrer was overruled, and all the pleas were left to stand. The three pleas drawn in question by the demurrer, all had relation to the same subjectmatter, which was this: The defendant was damaged by putting into his stable diseased horses belonging jointly, to the plaintiff and his son, the disease being contagious, and being communicated to the defendant\'s horses, in consequence of which one of them died and two others were injured. The defendant\'s consent to the stabling was given without knowing of the disease. The third plea presented the damages by way of set-off; and alleged that the plaintiff, through his son (a joint owner both of the horses and the notes sued on) procured permission to put the diseased horses in defendant\'s stables by falsely representing that they did not have the disease which they did have. The fourth plea presented the damages, also, by way of set-off, and averred a contract between plaintiff and defendant by which the former undertook and agreed, if the latter would allow the use of the stables, to pay all the damages that might result from the communication of disease to the defendant\'s horses. The fifth plea presented the damages, generally, by way of bar, and alleged *that the plaintiff falsely and fraudulently represented the horses to be free from contagious diseases, etc.

1. The third plea, if it amounts to anything, alleges a tort, and, therefore, does not present matter of legal set-off to the plaintiff's action, which is founded on contract.

2. The fourth plea is in contract, and is within the Code, which allows the defendant to defend upon a claim of the same nature with the plaintiff's demand. Under this broad rule unliquidated damages may be the subject matter of set-off.

3. The fifth plea is also in tort, and the demurrer to it, as well as to the third plea, should have...