15 Ga. App. 455 | Ga. Ct. App. | 1914
Foote brought suit against Cooney in a justice’s court, to recover $36, a balance alleged to be due him upon an account, and sought, in the same action, to foreclose a materialman’s lien upon real estate. The summons described the suit as “an action of debt due upon an account and to establish a lien on real
1, 2. Of course, justice’s courts-are without jurisdiction to entertain proceedings to foreclose liens upon real estate, for courts of limited jurisdiction take nothing by intendment, and an express enactment would be necessary to confer such authority upon this inferior judicatory. Bell v. Rich, 73 Ga. 245. However, niceties of pleading are not required in justice’s .courts, and in the present case, while it appeared from the summons that the plaintiff sought to “establish a lien upon real estate,” the proceeding was also in the nature of a suit upon an account, and the statement that it was such a suit was made in the summons, to which was attached an itemized statement of the various articles furnished and of the repairs made by the plaintiff. The court did not err in refusing to dismiss the action, since the plaintiff met the motion by an offer so to amend as fully to obviate the objections urged by the defendant. Atlanta & West Point Railroad Co. v. Georgia Railway & Electric Co., 125 Ga. 798 (54 S. E. 753). To use the words of Mr. Chief Justice Sanderson in Nevada County ¶. Kidd, 28 Cal. 684, “Where a pleader stands upon his pleading and maintains its efficiency in law in the presence of a demurrer or other hostile attack, the rule to which counsel appeals with so much confidence [that pleadings are to be taken most strongly against the pleader] undoubtedly applies. In such a ease all doubts are to be resolved against the pleader. He asks no mercy and is entitled to no quarter. But that is not this ease. Here the pleader confesses his pleading is bad and that it imperfectly and ambiguously expresses his meaning and
3. The defendant’s insistence that the undisputed evidence showed that if the defendant owed the plaintiff anything, it was on an express contract, and not on an open account, is not sustained by the record, and is without merit. A suit may be maintained as'upon an open account although the indebtedness upon the account had its origin in an antecedent contract. In such a case the contract is evidence merely of liability, and proof of the account measures the amount of the liability. The mere fact that one has contracted to perform services for another , does not necessarily require that the contract be pleaded when the plaintiff seeks only to recover the fruits of the contract in accordance with its terms. Ittner v. Farmers State Bank, 15 Ga. App. 235 (82 S. E. 909). However, in the view which we entertain of the evidence in the present record, there is nothing to show more than that the plaintiff was employed by the defendant to do certain work and furnish certain material (impliedly for its market value), from which resulted, as matter of law, an implied promise on the part of the defendant to pay reasonable compensation upon completion of the work. Only one item of the account (the roofing of the porch) appears to have been the subject of express contract, and the terms of this contract were not in dispute.
4. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed.