118 Ga. 131 | Ga. | 1903
An action for damages was brought by B. L. Hendricks against the W. G. Middlebrooks Co., a partnership, and certain individuals 'who were members of that firm, the plaintiff alleging in his petition that they had injured him in the sum of $5,000, by reason of the following facts: “Between August 1st, 1901, and February 6th, 1902, petitioner [who was the proprietor of the Park Hotel, in the city of Macon] purchased from the said W. G. Middlebrooks Co. groceries to the amount of $212.51, as set forth by the pass-book of petitioner, the entries in said pass,book being made by defendants,” and it being furnished to him by them on March 3d, 1902. During the period above mentioned, he paid on his account $169.70, “leaving a balance due to defendants of $42.81, according to the said pass-book . . and according to the itemized statement of the account of petitioner furnished March 3rd by the said defendants.” On August 6th, 1901, he paid them “in full up to August 1st, 1901. After this payment and settlement in full, petitioner made payments upon his subsequent account” with them; and “when petitioner’s next bill was presented to him, petitioner demanded an itemized statement of the same of defendants, and defendants promised to render same to petitioner at once, but failed to do so. At numerous times after
To this petition the defendants demurred on the grounds, (1) that it showed “ on its face that the petitioner was indebted to the defendants at the time it is alleged they brought suit against him and sued out garnishments” in connection with said suit; and (2) that the plaintiff was not entitled to recover because of the alleged reports circulated by Holleman, especially in view of the fact that at the time he made the statements set forth in the plaintiff’s petition the latter was in fact indebted to the partnership. The plaintiff subsequently offered two amendments to his petition, in one of which he alleged he had been damaged in the sum of $5.95 by reason of having to pay the costs of the legal proceedings wrongfully instituted against him by the defendants, and in the other of which he alleged that the suit which he brought against them to recover the amount of the overpayment he had made to them under protest had resulted in his favor. This latter amendment also contained the following averments: “ It is the custom with the grocers of Macon and with the said W. G. Middlebrooks Co. to furnish an itemized statement of all accounts upon request of debtor for same. Defendants owed a duty to B. L. Hendricks to furnish him with an itemized statement of his account before they could collect same; they obligated themselves to do so as a condition precedent to receiving payment from the said B. L. Hendricks of any amount that said Hendricks then owed the said W. G. Middlebrooks Co. This violated obligation and disregard of duty on the part of the said defendants towards the said B. L. Hendricks, evidenced by said malicious abuse of legal process, injured and damaged” petitioner, as aforesaid. On the hearing of the case in the trial court, his honor sustained the demurrer filed by the defend
It is pertinent to remark, in this connection, that while the defendants, for the purposes of demurrer, admitted all the facts set forth in the plaintiff’s petition, they by no means accepted as correct any of the mere conclusions he drew therefrom. In the absence of an unequivocal averment that, in point of fact, he knew of and contracted with reference to a local custom which imposed upon Macon grocers the obligation of furnishing to each customer “an itemized statement of his account, before they could collect same,” the plaintiff’s bare assertion that the W. G. Middlebrooks Co. “ owed a duty to” him to render such a statement before instituting suit, amounts to nothing more than the expression of an opinion on his part concerning their legal obligations in the premises. Unless he entered into a contract with them under the terms of which they were legally bound to furnish him with an itemized statement of his account, he was not entitled thereto, notwithstanding they may have been in the habit of furnishing such statements to other customers whenever called on to do so. See Hauft v. Insurance Co., 110 Ga. 146, and authorities cited. Possibly the plaintiff may have meant to aver that because the defendants had faithfully promised him to furnish the statement requested, and to wait on him for payment until they had done so, their fulfillment of this promise was a condition precedent to receiving payment or bringing suit upon tbe account. We shall accordingly deal with this phase of the case.
The action with which we are now dealing sounds in tort, and is in no sense a suit to recover damages for an alleged breach of contract. The plaintiff admits that he was indebted to the defendants in a specified amount at the time they brought suit against him, and no consideration is shown for the promise they made to wait on him for payment until he was furnished an itemized statement of his account. This being so, neither this suit nor the garnishment proceedings in connection therewith can properly be said to have been instituted wholly without cause. The plaintiff makes the charge that “the filing and prosecuting of said suit and gar.nisheeing petitioner’s boarders in connection therewith . . was a malicious abuse of legal process,” which resulted in great injury and damage to him. However, it is to be noted that he alleges but a single fact in support of this charge, viz.: that the defendants well knew at the time they brought suit that he was not indebted to them to the amount of $86.94, for which sum they asked judgment. Nor is there any pretense on his part that any of the defendants, save Holleman, acted maliciously in the matter with a view to injuring his credit, causing his boarders to leave him, or accomplishing any other wrongful or illegal purpose. So the question at last is: Can the plaintiff be permitted to claim and recover damages, either punitive or actual, simply because the defendants, knowing he owed them but $42.81 on account, brought suit against him for $86.94, and declined to dismiss this suit or the garnish
The foregoing discussion covers, we think, all the points relied on by counsel for the plaintiff in error upon the hearing before us. On the whole, we are satisfied that, taking the most favorable view of the case made by his pleadings, the sustaining of the defendants’ demurrer was, certainly as to the partnership, entirely proper.
Judgment affirmed.