Eskew v. Camp

130 Ga. App. 779 (1974)

204 S.E.2d 465

ESKEW v. CAMP.

48924.

Court of Appeals of Georgia.

Submitted January 8, 1974.

Decided February 5, 1974.

Linus L. Zukas, for appellant.

Goodman & Hudnall, Craig R. Goodman, for appellee.

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 plaintiff's 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).

Judgment affirmed subject to appellee deducting the punitive damages of $2,500; otherwise reversed. Bell, C. J., and Quillian, J., concur.