Coplan v. Thompson Transfer Co.

Russell, J. The amendment to the plea was not objected to, and the plea as, amended was practically a declaration of the defendant’s election to waive the tort and, by cross-action of set-off, to sue .upon a breach of contract. Civil Code, § 4407. The court therefore erred in striking the plea on the ground that it was an effort to set off a tort against a claim arising ex contractu, and in thereafter directing a verdict. Even if the original plea can be construed as a set-off sounding in tort, the defendant had the right to waive the tort and sue’ upon the alleged breach of contract. Judgment reversed. Charles G. Janes, Bunn & Bunn, for plaintiff in error, cited: Civil Code, § 4407; 104 Ga. 692, 696; 94 Ga. 140-1; 118 Ga. 119; 123 Ga. 727 (1); Cooley, Torts (1880), 91. W. W. Mundy, contra, cited: Civil Code, §§ 5668, 4340, 4406; 90 Ga. 416 (2); 3 Ga. App. 709 (1), 710; 70 Ga. 368 (1), 377; 116 Ga. 140 (2); 114 Ga. 924, 928; 5 Ga. App. 251; 8 Ga. App. 540 (1), 771; Cooley, Torts (2d ed.), 105, 106.