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 (167 SE2d 599
Judgment affirmed subject to appellee deducting the punitive damages of $2,500, otherwise reversed. Bell, C. J., and Quillian, J., concur.
Goodman & Hudnall, Craig R. Goodman, for appellee.