Bowen v. Samuels

51 S.E.2d 667 | Ga. | 1949

1. Though a petition may be defective, if it sets forth a cause of action, legal or equitable, for any of the relief prayed for, it is not subject to be dismissed on general demurrer.

2. Where in a single ground of special demurrer numerous paragraphs of a petition are demurred to as a whole upon the ground that they are mere conclusions of the pleader, and portions of the paragraphs demurred to are not subject to the criticism, the demurrer is insufficient in that it fails to point out with particularity the portions of the stated paragraphs which are defective.

No. 16519. FEBRUARY 14, 1949. Nathan Samuels field suit against John E. Bowen, George W. Fuller, and Mace J. Green, in which he alleged in substance: that he was the owner of two described lots located in the City of Atlanta, worth the reasonable sum of $800; that in June, 1946, he entered into a written contract with John E. Bowen for the construction of a dwelling house on one of the lots for the sum of $2500, according to certain plans and specifications; that $1075 was borrowed on the property from C. A. Ruggles and turned over to John E. Bowen; that on November 3, 1937 (sic), the petitioner executed to Bowen a deed to the two lots, which was intended to be a deed to secure debt by all of the parties, but which, without the knowledge of the petitioner, was in the form of a fee-simple warranty deed; that Bowen then conveyed the property to George W. Fuller for a consideration of $2100, out of which the $1075 due Ruggles was paid and the remainder of $925 was retained by Bowen; that on November 28, 1947, the petitioner, believing that Bowen had completed the house according to contract, moved into the house; that the defendant Green has placed a for-sale and for-rent sign on the property, and the defendant Bowen has instituted dispossessory proceedings against the petitioner; that the defendant Bowen has totally failed to comply with his contract for the reason that the house in many detailed particulars fails to comply with the plans and specifications; that the house has been condemned as unsafe by the building inspector for the City of Atlanta and has been classified as a fire hazard by the fire marshal; that the building can not be used for any purpose and will have to be torn down; that the consideration for the deed by the petitioner to Bowen has totally failed; that all of the defendants knew that this deed, while unconditional on its face, was in fact intended to be a deed to secure debt; and that the petitioner was required to pay $400 as rent for a house in which to live after the date Bowen contracted to have the house finished.

The prayers of the petition were: (a) that the defendants be temporarily enjoined from selling or encumbering the property; (b) that the dispossessory proceeding be enjoined; (c) for a cancellation of deeds and a decree of title in the petitioner; (d) for an accounting; (e) for a receiver; (f) for damages against the defendant Bowen in the sum of $1200; and (g) for general relief.

A general and special demurrer to the petition was filed by the defendant Bowen. The trial judge overruled these demurrers, and the exception is to that judgment. 1. With reference to the general demurrer, the question presented to this court is, did the petition set forth a cause of action for any of the relief sought? "Where the demurrer going to the whole bill is overruled, it is an adjudication that the complainant is entitled to some relief, but the extent of the relief is still an open question." Johnson Smith v.Wheelock, 63 Ga. 623 (2). "A petition which, though defective, sets forth a cause of action is not subject to be dismissed on general demurrer." Lowery Lock Co. v. Wright,154 Ga. 867 (1) (115 S.E. 801).

In the instant case the petition alleged a breach of contract as a result of which there was a total failure of consideration, and that the plaintiff had parted with property valued at $800. Certainly as to the recovery of this amount, the petition set forth a cause of action. This court is required to look no further. See Peoples Loan Co. v. Allen, 199 Ga. 537, (34 S.E.2d 811). The judgment overruling the general demurrer must be affirmed.

2. The special demurrer was as follows: "Defendant demurs specially to paragraphs 4, 5, 6, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, on the ground that each and every one of said paragraphs are mere conclusions of the pleader without any facts or allegations to support or warrant the same, and should be each and all stricken." In Veal v. Beall, 189 Ga. 31 (2), 34 (5 S.E.2d 5), this court held: "Where a special demurrer attacks 13 paragraphs of the answer on the ground that they are immaterial and irrelevant, and are mere conclusions, such demurrer is too vague and uncertain to require a ruling thereon." See also Johnson v. Hopkins, 145 Ga. 817 (2) (90 S.E. 60). Portions of the paragraphs demurred to as being conclusions of the pleader were clearly not subject to the criticism lodged against them; and, since the demurrer fails to point out with particularity the parts of the stated paragraphs which are defective, the demurrer itself is defective and insufficient. The trial judge did not err in overruling this ground of special demurrer.

Judgment affirmed. All the Justices concur.