1. While a plaintiff is bound by the allegations in his bill of particulars, yet, if the defendant seeks to set off unlisted credits against the items in the bill, the plaintiff is entitled to rebut such testimony by showing it had already settled or satisfied these credits which are not a part of the claim upon which the plaintiff is suing.
2. Where a defendant admits a prima facie case and assumes the burden of proving a defense thereto but fails to carry such burden, the trial court may properly direct the verdict for the plaintiff, and it was error for the Court of Appeals to reverse that court upon alleged erroneous rulings occurring during the trial where the evidence demanded the verdict.
This case is here by reason of the grant of the writ of certiorari to the Court of Appeals to review its decision in Wright v. Lansdale Clothes, Inc., 105 Ga. App. 142 (123 SE2d 668)
. The suit involved a bill of particulars upon which certain guarantors in a contract of guaranty were sued for a definite amount after the original debtor had become a bankrupt. On the trial of the case the defendant here admitted a prima facie case, and thereafter attempted to set up evidence to refute the bill of particulars attached to the petition, which listed (1) loans made to the debtor (now bankrupt) in a definite amount; (2) advances of labor costs for goods not delivered involved in the employment contract; and (3) charges for materials made on open account to the debtor. In attempting to set off alleged credits against the bill of particulars the defendant sought to show labor credits which the debtor should have received upon the delivery of goods. In rebuttal, the plaintiff sought to explain when, where, and how previous credits had been made to the account before the final accounting contained in the bill of particulars.
Thereafter the lower court directed the verdict for the plaintiff and denied the defendant Wright's motion for new trial as amended, and the exception in the Court of Appeals was to this final judgment. The Court of Appeals held that the plaintiff could not prove debts not listed in the bill of particulars to offset credits shown by the evidence and not listed in the bill of particulars without amending the bill to give the guarantors notice of the claims made and an opportunity to fully defend the case. The application for certiorari assigns error on the above ruling and also on the opinion so finding, claiming that the court misconstrued the evidence and overlooked, disregarded, and failed to consider the record in the case, which shows a stipulation of a prima facie case; misconstrued and misapplied certain decisions upon which it based its opinion; and failed to apply the principle of law that where a verdict has or should have been directed because the evidence demanded such verdict there is no issue to present to the jury for determination. The case will be considered upon the assignments of error of the Court of Appeals in its consideration of the case.
1. When the defendant admitted a prima facie case this entitled the plaintiff to a verdict for the full amount sued for unless the defendant overcame this prima facie case by introducing evidence that would do so. Putting aside for the present consideration of the question as to whether or not the testimony introduced by the defendant amounted to any evidence, and assuming that it was evidence that would impeach the plaintiff's claim, the ruling we are asked to review is that, after such evidence was admitted, it was error to allow the plaintiff to rebut it by showing that the credits thus claimed were applied to other claims of plaintiff not listed on the statement of claim sued upon.
The Court of Appeals overlooked the fact that such evidence by the plaintiff was not offered for the purpose of enlarging or altering the claim sued upon but solely for the purpose of rebutting the evidence of the defendant. Self-defense is still lawful in or out of court. Had the plaintiff sought to introduce evidence to increase and add to the claim set forth in the amended petition without amending its claim to include such, it would have been error to admit the evidence over timely objection that it was not embraced in the claim sued upon. Being purely defensive and in no wise adding to the claim sued upon, the evidence was properly admitted.
2. But regardless of whether or not the rebuttal evidence dealt with in the preceding division was erroneously admitted, if the defendant's testimony failed to rebut the prima facie case, the direction of a verdict in favor of the plaintiff for the full amount sued for was demanded. Georgia Power Co. v. City of Decatur, 181 Ga. 187 (4) (182 SE 32).
Without here setting forth the testimony offered by the defendant for the purpose of showing credits on the claim of the plaintiff, its true character is revealed by stating that it showed some delivery of goods but utterly failed to say what value these deliveries amounted to in labor credits under the contract, or that they were not credited against the debts of the debtor. Such evidence would not authorize a jury to find any amount or to discount plaintiff's claim for any amount whatsoever. Code Ann. 110-104; Walton v. Johnson, 213 Ga. 108 (1) (97 SE2d 310)
. The defendant offered no other evidence to overcome the prima facie case, which he admitted; therefore a verdict for the full amount sued for was demanded. Code 38-103; Ray v. Marett, 84 Ga. App. 86 (65 SE2d 646)
; Mansfield v. Standard Oil Co. of Kentucky, 100 Ga. App. 393 (1) (111 SE2d 151)
; Richter v. Kilpatrick, 143 Ga. 470 (4) (85 SE 319)
; Baldwin v. McLendon, 164 Ga. 387 (1) (138 SE 775)
. Accordingly, the judgment of the Court of Appeals reversing the action of the trial court in directing a verdict for the plaintiff is
Reversed. All the Justices concur.