
    4005.
    FLORIDA CENTRAL RAILROAD CO. v. CHEROKEE SAWMILL CO.
    The allegations in the answer showed a valid set-off, and the court erred in striking it.
    Decided July 2, 1912.
    Complaint; from city court of Thomasville — Judge W. H. Hammond. January 5, 1912.
    The Cherokee Sawmill Company brought suit against the Florida Central Railroad Company on a promissory note. The defendant admitted the execution of the note, but filed a plea of set-off, alleging, in substance, that it delivered at a designated time to the plaintiff nine flat-cars, to be used in the plaintiff’s sawmill operations; that the plaintiff used the cars, and, by reason of usage and rough wear, they became worn out and of no value, and the plaintiff was therefore indebted to the defendant the value of the cars at the time of delivery to the plaintiff, to wit, $3,857, with interest; also that the plaintiff, after it had used these cars as above stated, agreed to pay the full value thereof; the plea being based both 'upon an implied contract to pay for the cars and upon an express promise to pay for them, made after their destruction. The plaim tiff moved to strike the answer, and contended that the matters alleged therein as a defense sounded in tort, and could not properly be pleaded as a set-off. against a suit on a note. The court passed an order striking the answer “for its insufficiency in law,” and rendered judgment in favor of the plaintiff for the principal, interest, and costs. The case is here on exceptions to the order striking the plea, ancl to the final judgment upon the note.
    
      Branch & Snow, Theodore Titus, for plaintiff in error.
    
      Roscoe Luke contra.
   Hill, C. J.

(After stating the foregoing facts.)

The judge erred in striking the plea. The allegations of the plea do not sound in tort, but are based upon an implied contract which arose between the plaintiff and the defendant at the time of the delivery of the cars. This implied contract was to pay to the plaintiff the value of the cars, if they were destroyed by any act of the defendant which in law amounted to a conversion, or to pay the reasonable hire of the cars, although they might not have been converted, but were eventually destroyed by the ordinary and natural wear and tear. The plea seems, however, to contemplate the first contingency mentioned, and not the latter. Even if the cause of action had partaken both of the nature of a tort and of a contract, the defendant had the right to waive the tort involved in the destruction or use of the cars, and to sue for their value, basing its claim upon an implied promise to pay for them in the one case, or to pay the reasonable value of their hire in the other case. Under these circumstances the law presumes a promise to pay. Civil Code (1910), § 4406; Buchanan v. McClain, 110 Ga. 477 (35 S. E. 665). Besides, the plea contains the further allegation that the plaintiff expressly agreed to pay to the defendant the "value of the cars after they had been rendered worthless by usage. This express promise to pay constituted a contract which could beset off against the note; and the demurrer to the plea admits that this promise was made. For both reasons, therefore, we think it clear that the defense relied upon arose ex contractu and not ex delicto, and the court erred in striking the answer and entering up judgment on the note. Judgment reversed.  