Opinion
30027.
DECIDED APRIL 8, 1943. REHEARING DENIED MAY 12, 1943.
Complaint; from Savannah city court — Judge MacDonell. November 16, 1942. (Application to Supreme Court for certiorari.)
Gilbert E. Johnson, W. Ray Alexander, for plaintiffs.
Abrahams, Bouhan, Atkinson Lawrence, for defendant.
Where the plaintiffs brought suit against the defendant railroad for unliquidated damages caused to three carloads of watermelons delivered to the defendant for transportation to certain destinations, and the defendant filed a plea seeking a set-off ex contractu for the amount of a balance of freight and demurrage expense due it by the plaintiffs, and the parties went to trial on the pleadings without any demurrer or motion by the plaintiffs to strike the defendant's plea of set-off, and verdict and judgment were rendered finding for the plaintiffs in a stated sum and also finding for the defendant in the amount sought to be offset against the plaintiffs' claim, and thereafter the plaintiffs filed a motion in arrest of judgment as to the finding in favor of the defendant, Held: Assuming but not deciding that the plaintiffs might have objected to the defendant's plea ex contractu as being inappropriate and not allowable as against the plaintiffs' tort action, it was good in substance and the findings of the jury were in conformity with the pleadings and issues to be tried, and it was too late after verdict for the plaintiffs to raise the objection that the set-off could not be pleaded against the tort action. Accordingly, the trial court did not err in overruling the plaintiffs' motion in arrest of judgment. Brantley v. Dempsey, 24 Ga. 341; Kelly v. Strouse, 116 Ga. 872, 890 ( 43 S.E. 280); DeLoach Mill Mfg. Co. v. Standard Sawmill Co., 125 Ga. 377 ( 54 S.E. 157). See also Levine Bros. v. Mantell, 90 W. Va. 166 ( 111 S.E. 501); L. N. R. Co. v. Nichols, 187 N.C. 153 ( 120 S.E. 819).
Judgment affirmed. Stephens, P. J., and Felton, J., concur.