Eskew v. Camp

Clark, Judge. Plaintiff, a building contractor, sued defendant for $738 as the balance due on a contract for furnishing labor and materials used for improvements on defendant’s realty. Defendant’s answer consisted of a denial, a plea of failure of consideration, and a counterclaim for breach of contract. This cross action sought compensatory damages of $790, punitive damages of $5,000, and attorney fees of $2,500 for stubborn litigiousness. The claim for attorney fees was stricken on motion but the court declined to strike the claim for punitive damages. The jury awarded defendant $790 actual damages and $2,500 in punitive damages on his counterclaim. This appeal is by plaintiff from the judgment rendered upon this verdict. Defendant’s counterclaim sought to recover for damages sustained as a result of plaintiffs breach of contract. As defendant’s claim thus arose ex contractu and not ex delicto it was error to render a judgment for punitive damages against the plaintiff. Code § 20-1405. See also Nichols v. Williams Pontiac, 95 Ga. App. 752 (5) (98 SE2d 659) and Cohen v. Garland, 119 Ga. App. 333, 340 *780 (167 SE2d 599). Submitted January 8, 1974 Decided February 5, 1974. Linus L. Zukas, for appellant. Goodman & Hudnall, Craig R. Goodman, for appellee. Judgment affirmed subject to appellee deducting the punitive damages of $2,500; otherwise reversed. Bell, C. J., and Quillian, J., concur.