Armuchee Pants Manufacturing Co. v. Juilliard & Co. , 14 Ga. App. 141 ( 1914 )

Roan, J.

1. The court did not err in overruling the motion to dismiss the petition. No demurrer was filed before the trial term. The motion to dismiss was made at that term. Misjoinder of parties or of causes of action is a defect which should be taken advantage of by special demurrer filed at- the first term. Riley v. Royal Arcanum, 140 Ga. 178 (78 S. E. 803); Georgia Railroad & Banking Co. v. Tice, 124 Ga. 460 (52 S. E. 916, 4 Ann. Cas. 200) ; Bishop v. Woodward, 103 Ga. 281 (29 S. E. 968); Harrell v. Davis, 108 Ga. 789 (33 S. E. 852).

2. Did the court err in striking the 'answer as amended, and in rendering judgment for the plaintiff? "We think not, for the following reasons:. From the pleadings it appears that the goods were shipped at different times, and, so far as appears, all were shipped as ordered except the 9,000 yards of goods mentioned in the answer. Under the contract the purchaser was as much obligated to make payments for the shipments as they fell due as the plaintiffs were to ship the goods when ordered. From the admissions in the pleadings it is apparent that when the plaintiffs stopped-the shipment of the 9,000 yards of goods in transit, the defendants were in default as to payments for goods shipped under the contract. If the defendants were entitled to be furnished goods at certain times under the contract, they were under a correlative duty to pay for them in accordance with the contract, and their failure to do so gave the plaintiffs a right to discontinue the shipping of goods. The defendants can not be allowed to violate their part of the contract by a failure to make payments when due, and then hold the plaintiffs for damages because of failure to ship additional goods thereafter. See Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142 (35 S. E. 280); Macon Gas Light & Water Co. v. Freeman, 4 Ga. App. 463 (61 S. E. 884).

3. The answer having been stricken; the court, upon the admissions contained in it which the plaintiffs had introduced in evidence, was authorized to enter judgment against the defendants for the amount sued for. Under the act creating the city court the judge could do this without the intervention of a jury, no jury having been demanded. Judgment affirmed.