Elsner v. CATHCART CARTAGE COMPANY

124 Ga. App. 615 (1971)

184 S.E.2d 685

ELSNER et al. v. CATHCART CARTAGE COMPANY.

46260.

Court of Appeals of Georgia.

Argued June 4, 1971.

Decided October 18, 1971.

Scheer & Elsner, Robert A. Elsner, Gary I. Wittick, for appellants.

Gettle, Jones & Fraser, Sherman C. Fraser, Richard Gordon, for appellee.

WHITMAN, Judge.

This is an appeal from an order granting a motion to strike a defense and counterclaim. Cathcart Cartage Co. filed a complaint alleging that the Elsners were indebted to it in a certain sum on a contract. An alleged contract was attached to the complaint. It is a document which reflects the itemized charges made in connection with a move of the defendants' belongings, household goods and furniture from one location to another. Plaintiff later added a second count by amendment, praying for a recovery of the same sum on the basis of implied contract. Held:

1. The defense in question in effect alleges fraud and deceit by plaintiff by knowingly making a false estimate as to the cost of its services upon which defendants relied and acted to their *616 detriment and damage in certain particulars.

The defense of fraud may be asserted against an action on a contract. Code § 20-502. The defense here sets forth the alleged fraud with sufficient particularity to comply with the pleading requirements of the CPA. Code Ann. § 81A-109 (b) (Ga. L. 1966, pp. 609, 620). "[D]efensive pleadings are to be liberally construed in favor of the pleader and a motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense." Wellbaum v. Murphy, 122 Ga. App. 654 (1) (178 SE2d 690).

The trial court erred in granting the plaintiff's general motion to strike this defense.

2. The counterclaim in question is an action in tort based on the alleged fraud above mentioned and seeks to recover certain damages allegedly resulting therefrom. The alleged fraud is also set forth with sufficient particularity in the counterclaim to comply with the pleading requirements of the CPA. Code Ann. § 81A-109 (b), supra.

Under the CPA an ex delicto counterclaim may be asserted against an ex contractu action. Cities Service Oil Co. v. Cronan, 123 Ga. App. 794 (182 SE2d 484); Code Ann. § 81A-113 (Ga. L. 1966, pp. 609, 625).

The trial court erred in granting the plaintiff's general motion to strike the counterclaim.

Judgment reversed. Hall, P. J., and Eberhardt, J., concur.