54 S.E.2d 298 | Ga. Ct. App. | 1949
Lead Opinion
The court did not err in overruling the general demurrer to the petition for the reasons stated in the opinion.
The defendant demurred generally to the petition as amended, and excepts to the judgment of the court overruling said demurrer. *514
1. The defendant's first contention is that the general demurrer should have been sustained because the petition failed to allege facts from which it could be determined that any amount was owing by the defendant to the plaintiff, and failed to show any reason why such facts could not be alleged. In other words, the contention is that in the absence of any allegation as to expenses incurred in making the sale, the petition failed to set out a cause of action. We do not think this contention is meritorious. It may be that there were no expenses. The demurrer assumes that there necessarily were some expenses incurred, and to this extent it was a speaking demurrer. Where a cause of action is set out for any amount a general demurrer should not be sustained. Williams v. Bernath,
If a petition sets forth a cause of action either ex contractu or ex delicto, it will withstand a general demurrer. Citizens Southern Bank v. Union Warehouse c. Co.,
2. Defendant further contends that the petition failed to allege that the contract was in force at the time of the sale. We do not agree with this contention. The petition alleged: "The said defendant company by its president, J. C. Pirkle, acting under the agreement had with plaintiff, did find a buyer for the said `twenty whiting cards'." Such a general allegation as to the existence of the contract at the time of the sale is sufficient as against a general demurrer.
3. Defendant's third contention is likewise without merit. The contention is that the petition fails to describe the property with sufficient certainty in that it alleges that the cards were located at Newnan "or" Whitesburg, Georgia, and the defendant is unable to tell whether the petition is referring to the machinery in Newnan or the machinery in Whitesburg. The same is true as to the allegations respecting the owner, A. L. Fuller, who allegedly lived in Whitesburg "and/or" Newnan. Georgia. Even if the petition in this respect is subject to criticism, we are of the opinion that such defects should have been objected to by special demurrer and not by general demurrer as in this case.
The trial court did not err in overruling the general demurrer to the petition as amended.
This case was considered by the whole court as provided by the act approved March 8, 1945, Ga. L. 1945, p. 232.
Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardnerand Townsend, JJ., concur. Felton, J., dissents. *516
Dissenting Opinion
I think the first contention of the plaintiff in error is well taken. "Although in code States pleadings are to be liberally construed so far as concerns matters of form, it is of course obvious that this rule does not dispense with the necessity of pleading; and so, under this rule essential averments lacking in a pleading can not be construed into it." 21 Rawle C. L. 466, § 32. "The court, in passing on the sufficiency of the allegations to make out a case, should keep in mind the principle that every material fact which goes to constitute the plaintiff's cause of action must be alleged; that is, he must sufficiently allege every fact which he would be required to prove in order to recover. Groover v. Simmons,
In the case at bar the petition failed to allege the amount of *517 the expense incurred or that the information was solely in the possession of the defendant and that for that reason plaintiff was unable to allege same. Construing the petition most strongly against the pleader, it fails to set forth a cause of action and is subject to a general demurrer. Under the allegations of this petition the expenses could have been greater than the amount of the commissions earned, and if this be the case then the plaintiff would have no cause of action against the defendant. The petition should have alleged specifically that the expense incurred was less than the commissions in order to show an amount due the plaintiff. The effect of the majority ruling is to presume that the expenses were less than the commissions, as against a general demurrer.