Aрpellees, Mr. and Mrs. Henderson, have filed a motion to transfer the case to the Supreme Court on the ground that the setting off of an ex contractu claim against an ex delicto action involves the exercise of equity-powers of the trial cоurt, hence asserting that this is an equity case.
We decline to transfer the case because we can find nothing in it requiring the exercise of equity powers. In a legal sense no setoff is involved. “A setoff is a cross action, and must be pleaded with as much certаinty and definiteness as a declaration in any suit at law.
Kahrs v. Kahrs,
This court has jurisdiction of the appeal, and the motion to transfer is denied.
Appellees move to dismiss the appeal, asserting that on June 1, 1967 (after thе appeal was docketed in this court), they amended their petition in the trial court and that consequently the judgment sought to be reviewed is not and could not be a final judgment on a demurrer to the petition as ^mended. It is urged that the questions raised on apрeal have thus become moot. Reliance for this proposition is on
Griffith v. Morgan,
However, there are cases in which it has been held that where a general demurrer is
overruled,
as here, the case is still pending m the trial court, subject to amendment, even after the signing and filing of а bill of exceptions under the practice obtaining prior to the Appellate Practice Act of 1965. See
Ware v. Martin,
(While we find the amendment here tо be immaterial, as is observed later in the opinion, and thus we are not called upon to decide whether the filing of a
material
amendment would render the appeal moot, we do call attention to the case of
Kiser v. Kiser,
“The solemn duty devolves upon this court to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court.
Byrd v. Goodman,
What is the effect of an amendment? Code § 81-1312 provides that if it materially changes the cause of action or defense it opens the petition anew to demurrer, but “An immaterial *118 amendment shall not so open the petition or other pleading. . .”
In connection with a motion to dismiss on this ground the burden is on the movant to demonstrate that the amendment has materially changed the cause of action or defense. Although it is asserted that the amendment is material, movant fails to demonstrate it, and upon examination of a copy which the clerk of the trial court has certified and sent up, it appears to be immaterial under the standards of
Blanchard v. Posey,
If we should dismiss this appeal, since the amendment is immaterial the trial judge would not be required to make any further adjudication or enter any further order. The only result would be to cut off from appellant a right of appeal, since the order overruling the general demurrers was entered February 22, 1967, and amended March 3, 1967. More than 30 days has passed, even from the date of the amending of the order, and under the provisions of
Code Ann.
§ 6-803 the notice of appeal must be filed within 30' days from the entry of the order or judgment appealed from. Indeed, since the amendment is not a material one the trial court would have no jurisdiction to entertain or rule on a new demurrer or motion to dismiss.
Loughridge v. City of Dalton,
Dealing with a somewhat similar problem the Supreme Court asserted in
Humphries v. Morris,
The tortious misconduct for which plaintiffs seek to recover damages is alleged to consist of the refusal, without prior notice of credit revocаtion, of defendant’s clerk to extend further credit to Mrs. Henderson when she sought to charge purchases made at its Lenox Square store December 8, 1965. It is alleged that on this occasion defendant’s clerk and the assistant manager of the store (callеd in by the clerk), informed her “that instructions had been received to the effect that her purchases upon such charge plate should not be honored, and in the event she appeared for such purpose she was to be asked to surrender the charge plate she offered.” Extension of credit on the proffered charge plate was thus denied. It is alleged that the incident occurred during the Christmas shopping season when many people were in the store, and that it was within the presence аnd *120 hearing of a number of them, causing Mrs. Henderson “considerable embarrassment and humiliation, severely injuring her peace, happiness and feelings.”
It is further alleged that defendant’s collection' manager, wrote a letter to her January 11, 1966, mailing it from New York, calling on her for payment of previous charges, asking that she return the additional credit card and further stating: “We wish to make this known to you, so that it will not prove embarrassing to all concerned. If you attempt further charging under these circumstances, it amounts to attempting to obtain goods without having a charge account.”
We can find nothing in the conduct of the defendant’s clerk, assistant store manager or collection manager that amounts to tortious misconduct, giving rise to a cause of action. While it is nоt alleged that the clerk or assistant manager were rude, boisterous or abusive in requesting the surrender of the credit card (and we must therefore assume that they were not), then-conduct in refusing the extension of credit and asking surrender of the credit card would not have given rise to a cause of action even if it had been so alleged.
Wittern v. J. M. High Co.,
The issuance of a credit card is but an offer to extend a line of open account credit. It is unilateral and supported by no consideration. The offer may be withdrawn at any time, without prior notice, for any reason or, indeed, for no reason at all, and its withdrawal breaches no duty—for there is no duty to continue *121 it—and violates no rights. Acceptance or use of the card by the offeree mаkes a contract between the parties according to its terms, but we have seen none which prevents a termination of the arrangement at any time by either party. If notice of termination is required by either party, it must be so provided in the contraсt. As a rule there is no requirement of prior notice for termination by the issuer. A request to the person holding the card that it be surrendered upon termination of the extension of credit by the issuer is reasonable, and if he has the card it should be surrendered. If it becоmes lost or stolen the contract generally requires that prompt notice of that fact be given to the issuer. There is no allegation in this petition of any contract requirement of prior notice of cancellation by the issuer, and we must assume that there was none.
Construing this petition against the plaintiffs, as must be done on demurrer, it must be concluded that nothing has been done by or on behalf of the defendant which it did not have a right to do, and that nothing said by the defendant’s clerk or assistant manager amounts to slander. Consequently neither of them has committed any tort against the plaintiffs.
Jordan v. J. C. Penney Co.,
It may be embarrassing and humiliating to have one’s credit discontinued; it may make him unhappy and adversely affect his feelings and peace of mind, as Mrs. Henderson alleges it did to her, but that does not make it a tort, or give rise to a cause of action. Those who are engaged in the operation of stores or similar places where goods, wares and merchandise are offered for sale must be afforded the use of reasonable means in protecting their solvency. An enfоrced extension of credit could deplete the assets as effectively as would a purloining of the goods. Cf.
Gouldman-Taber Pontiac, Inc. v. Zerbst,
The allegations of this petition disclose nothing more than a *122 civil, orderly informing of Mrs. Henderson that further extensions of credit to her could not bе made and that she was requested to surrender the credit cards. It was not slanderous or otherwise tortious.
Did the sending of the letter by defendant’s collection manager afford the basis for an action for tortious misconduct? Obviously not. Nothing in the letter is libelous; if it were, there is no allegation of publication. She was simply asked to pay the account representing prior charges and to send in the remaining credit card and admonished that if she should attempt further charging under these circumstances, it would amount to an attempt to obtain goods without having a charge account. There is no charge of the commission of any crime-—merely an admonition that in her future conduct she should avoid what the law forbids. There is no statement, even by innuendo, that she had done or had sought to do that which the law fоrbids. The letter affords no basis for an action.
Moreover, as we have heretofore pointed out, the action for tortious misconduct is based upon the invitor-invitee relationship and has no application where that relationship has ended.
Greenfield v. Colonial Stores, Inc.,
The general demurrer should have been sustained.
Judgment reversed.
Notes
This is in keeping with the precedent of prior cases in which a determination of materiality was made. See
Gillon v. Johns,