
    Ozburn v. Dunlap Milling Company.
    No. 3306.
    March 15, 1923.
    Equitable petition. Before Judge George L. Bell. Fulton superior court. June 5, 1922.
    The exception -in this case is to a judgment sustaining a general demurrer to a petition filed by C. P. Ozburn, seeking to enjoin an action brought by Dunlap Milling Company pending in the city court of Atlanta, with the view of obtaining a set-off in equity against the Dunlap Milling Company’s claim, and determining the entire controversy in the superior court. The allegations of the equitable petition are, in substance, that Ozburn was a broker and Dunlap Milling Company, a non-resident corporation, a wholesale dealer in flour; that the Dunlap Company' sold Ozburn a quantity of flour for which Ozburn was indebted,' and for which suit was brought by the Dunlap Company in the city court of Atlanta, in an action sounding in contract; that on arrival the flour was found to contain bugs and worms, and was rejected by the customer; whereupon an agreement was entered into between the parties that Ozburn wás to store the flour in his warehouse pending a disposition of the same. As an inducement on which Ozburn acted the Dunlap' Company, through its representative, guaranteed that the bugs and worms would disappear as soon as cold weather set in, and that Ozburn would suffer no loss from infection of other flour that he had in his warehouse at the time, by reason of the storing of the wormy flour therein. Ozburn carried out the agreement and stored the flour, but the bugs failed to disappear; and on the contrary spread to the flour already in the warehouse, causing damage in the amount sued for. The city court of Atlanta having no equitable juris-* diction, Ozburn alleged that he could not plead set-off sounding in tort against the suit in the city court, which sounded in eon-tract. The Dunlap Milling Company interposed a general demurrer based upon the' grounds that (a) the alleged damages are, as to this defendant, remote and not recoverable against it in a court of law or equity; (6) it affirmatively appears that this defendant has been guilty of no actionable wrong against the plaintiff, regardless of the alleged damage sustained. The court sustained the demurrer, and ordered that the petition “be dismissed for want of equity.”
   Gilbert, J.

The court did not err in sustaining the general demurrer and dismissing the petition for want of equity. The petition shows that if the defendant was entitled to recover he had an adequate remedy at law. Whether or not the petitioner was entitled to recover by-reason of the facts alleged it is not necessary to decide. If, however, such facts were sufficient to entitle him to a recovery, such recovery could not be based upon the theory of a tort, but, under the allegations,' would arise out of the guaranty in the contract of storage; and such set-off could be pleaded in the city court of Atlanta.

Judgment affirmed.

All the Justices concur.

W. J. Davis, Jr., G. H. Calhoun, and W. B. Cody, for plaintiff.

Smith, Hammond & Smith, for defendant.  