53 S.E.2d 559 | Ga. Ct. App. | 1949
1. In a justice's court the suitor is not required to allege his cause of action with the same degree of strictness and formality that is necessary in a court of record, but where, as here, the petition undertakes to set forth an entire ground of complaint, which complaint does not show a cause of action, it is proper to sustain a general demurrer and dismiss the action.
2. When a deed is executed pursuant to a preliminary contract for the sale of land, any provisions in the sales contract are abandoned and of no effect when the deed executed pursuant to the contract makes no mention of them. Therefore, a petition seeking to set out such provisions of the preliminary contract, which are not expressed in the deed executed in pursuance of the sales contract, sets out on cause of action and the petition will be dismissed on general demurrer.
3. Where a petition is complete in form and substance, but shows on its face that no cause of action is set out as a matter of law, it is not permissible to add by amendment a new and different cause of action in another count or counts, or otherwise, over objection.
4. It is permissible under the law of procedure to embrace in a petition as many different counts as may be desired. But it must appear that the counts set forth causes of actions similar in nature, that is, all ex delicto or all ex contractu. And each count must set forth a perfect cause of action within itself, else such a count in failing to do so will be subject to be stricken on general demurrer and, in such event, the plaintiff may proceed on the remaining count or counts not so defective. It is also true that in a suit to recover damages the petition may embrace two or more separate counts setting forth different ways of the manner in which the injury or damage resulted, in order to meet anticipated variations in the proof which may be adduced at the trial. In such an event, if one of the counts be stricken because no cause of action is stated therein, the striking of such count will not bar prosecution on another good count or counts in the petition.
5. Where a petition complete in form and substances sets forth no cause of action as a matter of law, it cannot be amended, over objections properly made, setting up a new and distinct cause of action in a different count. This is true for the reason that there is nothing by which to amend. It is also true that, where a petition as originally filed is complete in form and substance, but sets up no cause of action as a matter of law, and an amendment is offered in another count setting up a new and distinct cause of action, and the allowance of such amendment is not objected to, it is error to sustain a general demurrer and dismiss the petition as amended. *277
6. In the instant case, (a) the court did not err in refusing to pass upon the demurrer of the plaintiffs to the answer; and (b) the court did not err in refusing an amendment to the petition after the petition had been dismissed on general demurrer.
(a) The petition was filed in the Civil Court of Fulton County. A jury was demanded by the plaintiffs. Materially, this petition alleged that on December 6, 1945, the plaintiffs entered into a written contract with the defendant for the purchase of a described tract of land in Colquitt County, embracing 78.5 acres. It was alleged that the defendant was obligated to pay for one-half of a line fence between this tract and tract number 2, which was adjacent to the one sold to the plaintiffs. It was alleged in the contract of sale that the defendant obligated herself to pay for one-half of the expenses of erecting a line fence between these two tracts, which the plaintiffs were to furnish the labor and material to erect. It was also alleged that, pursuant to this contract, a deed was executed by the defendant to the plaintiffs and that they went into possession of the tract purchased by them; that the line fence was erected by them in accordance with the agreement, and that one-half of the same amounted to $156.25, for which this suit was instituted; and that after the fence was erected the plaintiffs demanded of the defendant her portion of the expenses of erecting the line fence, but she refused *278 to pay the same. It was alleged that the defendant's husband acted as her agent throughout the transaction (this is not denied). The petition also alleged that the husband of the defendant thereafter demanded of the plaintiffs the difference between the amount sued for, $156.25, and $295 (which last sum the defendant claimed by reason of a tobacco allotment of two acres, as will appear hereinafter), which demand of the defendant was fraudulent and made for the purpose of avoiding the just claim of the plaintiffs, for which they sued in this action. It was further alleged that this demand on the part of the defendant was made in such bad faith and fraud as to amount to "stubborn litigiousness," and therefore the plaintiffs were entitled to recover of the defendant $100 for attorney's fees in addition to the principal amount sued for and also to recover an additional $35, the expenses of having to go to Colquitt County, Georgia, to secure evidence regarding this fraudulent demand. These two amounts, added to the principal sum, made the amount sought to be recovered $305.82. There was attached to this petition a real-estate broker's contract, which was signed by the plaintiffs but not by the defendant. This broker's contract, briefly, provided that the plaintiffs agreed to purchase the tract of land of 78.5 acres with the following provisos: That the defendant was to pay the taxes for 1945; that a two-acre tobacco allotment was to go to the plaintiffs with the tract of land sold to them; and that the defendant was to pay for "half of the line fence between this tract and tract No. 2 above mentioned." This broker's contract further stipulated that the purchase-price for the tract of land purchased by the plaintiffs was to be $4716.80. (This contract does not appear to have been signed by the defendant, but it is alleged to be the basis of the sale of the land, including the terms. The terms of this contract are involved in both the pleadings of the plaintiff and the defendant).
(b) The defendant filed demurrers, both general and special, the general demurrer being that the petition set out no cause of action, and the special, insofar as material, that a copy of the purchase contract is not attached; and also that a copy of the deed is not attached.
(c) Subject to demurrer, the defendant filed her answer *279 denying the material allegations of liability of the petition, and further alleged: that the purchase contract "relied on by the plaintiffs shows on its face that the parties agreed to a two-acre tobacco allotment for the tract purchased by the plaintiffs"; and that, following the sale of the said tracts of land by the defendant to the plaintiffs, the plaintiffs refused to secure an application for reconstitution of the 1945 tobacco allotment based on the written agreement; and that, by the refusal of the plaintiffs to sign this application, the County Committee of Colquitt County refused to permit the defendant to retain the tobacco allotment on the two tracts; that after she sold the tract of land to the plaintiffs she sold the number two tract to one John B. Clayton with the understanding that he was to have, with the tract which he, Clayton, purchased, the remainder of the tobacco allotment; that, because of the refusal of the plaintiffs to sign their applications for the tobacco allotment which went to them, the purchaser Clayton could not obtain from the committee the tobacco allotment which went with the portion which he purchased, that is, tract No. 2; and that she was thus forced to pay to Clayton as a reduction in the purchase-price of tract No. 2 which he purchased, the sum of $500. There is attached to this answer a copy of a contract between the defendant, Lorene S. Young, and the purchaser of the second tract, Clayton, wherein they settle this issue between them with reference to the damage which Clayton had suffered by reason of the failure of the plaintiffs to comply with their contract by refusing to make application for the tobacco allotment which went to them as a part of the consideration for the purchase-price of the tract sold by the defendant to the plaintiffs. There is set out in the answer that, by reason of conduct of the plaintiffs in refusing to comply with their written contract for the purchase of land, they had thus damaged the defendant in the sum of $295, and they sought in their answer in the nature of a cross-action to recover the difference between what the defendant owed as her one-half of the cost of erecting the line fence and what the plaintiffs owed her by their refusal to comply with their contract with reference to the tobacco allotment. The amount set out in this cross-action is alleged to be $134.51. *280
(d) The plaintiffs demurred specially to certain paragraphs of the defendant's answer.
(e) The plaintiffs thereafter filed another amendment, in which was attached in response to the demurrer the deed from the defendant to the plaintiffs, executed December 31, 1945, and recorded January 5, 1946.
(f) A copy of the deed attached is a warranty deed, conveying the tract of land specified in the written sales agreement attached to the original petition. It shows that the purchase-price was $4710. The deed makes no mention of the line fence nor the tobacco allotment mentioned in the written contract of sale, which is attached to the original petition and bears date of December 6, 1945.
(g) The plaintiffs thereafter amended their petition by adding a second count. The second paragraph of this count reads: "That, pursuant to an oral contract and agreement had between plaintiffs and defendant, Mrs. Lorene S. Young during 1946, the exact date of which plaintiffs can not at this writing designate and set out, plaintiffs did furnish the labor and material in the construction of a "line" fence between tract number three [one] which plaintiffs purchased, theretofore from defendant and tract number 2 in Colquitt County, Georgia." It was further alleged that the defendant agreed to pay for one-half of this line fence, and that the plaintiffs built it under the conditions alleged in the original petition. The other allegations of the amendments designated as count 2 are similar and many of them identical with the allegations of count 1 as to the erection of said fence and the amounts due to the plaintiffs therefor. This amendment contained in count 2 was allowed by the trial judge in the following order, omitting the formal parts: "The within amendment read, considered, allowed and ordered filed subject to writtenobjection and demurrer." (Italics ours.)
(h) After the filing of this amendment, the defendant filed a demurrer, the material portions of which are: "Comes now the defendant and, after the amendments of the plaintiffs to their petition tendered on this date, renews her general demurrer heretofore filed and further moves that the court not allow the said amendments on the following grounds: "1. The petition as *281 amended fails to set forth a cause of action against the defendant. 2. The petition as amended shows on its face that the plaintiffs have no cause of action against this defendant. 3. The amendments tendered attempt to set up an oral contract varying the terms of a valid written deed. 4. The amendments tendered set forth no cause of action against this defendant, in that they seek to set up an oral contract and show on their face that such a contract was, if proved as alleged, without any valid consideration. 5. The tendered amendments to the plaintiffs' petition attempt to set out a new cause of action and should not be allowed."
(i) On the pleadings the trial court passed the following order: "The general demurrer of the defendant interposed on April 5, 1948, to the plaintiff's petition, came on regularly before me for hearing, and pending a decision on that demurrer the plaintiff, on November 29, 1948, tendered two amendments which were allowed subject to objection, and on the same day the defendant renewed her demurrer to the petition as amended and objected to the allowance of the amendments. Upon consideration, the court is of the opinion that the original suit declared upon a contract to purchase real estate (see Exhibit A to amendment filed April 1, 1948), which was merged into the deed of December 31, 1945 (see Exhibit A to amendment to Count One, filed November 29, 1948), and the deed not containing any provision about the contract to build the fence, the court is of the opinion that the original petition, as amended, does not set forth a cause of action, and that the second amendment of November 29, 1948, which seeks to add an additional count based upon an alleged oral contract to build the same fence, should be stricken because it is inconsistent and seeks to set up a new cause of action, and for the further reason that there is nothing in the original petition to amend by. Whereupon, it is considered, ordered and adjudged by the court that the defendant's general demurrer, as renewed, be and the same is hereby sustained, and the amendment to the petition seeking to add a count to be numbered 2 be and the same is hereby stricken and the petition as amended be and the same is hereby dismissed, with $ ____ cost against the plaintiffs. This the 2nd day of December, 1948. [Signed] J. Wilson Parker, Judge, Civil Court of Fulton County." *282
(j) After the trial court had signed the above-stated order dismissing the case, the plaintiffs filed a third amendment designated as count 3. The court on this amendment entered the following order: "The within amendment was tendered to me on this date after the order dismissing the case on general demurrer, and it is therefore not allowed."
(k) To the judgment of the trial court the plaintiffs in due course filed an appeal to the Appellate Division of the Civil Court of Fulton County. That division affirmed the judgment dismissing the petition on demurrer.
1. The plaintiffs in error contend that since a suit might be brought in the Civil Court of Fulton County by a summons, as may be done in a justice of the peace court, the court erred in sustaining the demurrer for this reason. Even in a justice's court a plaintiff is required to set up the facts relied upon with some certainty. See Vaughan v. McDaniel,
2. The allegations of the original petition affirmatively show *283
the action to be one for the breach of an executory contract to buy and sell realty. It was in writing. The allegations show that the deed was executed pursuant to this contract. Therefore any actionable terms of the contract were merged into the written deed by operation of law. It thus follows that, since no provisions of the deed were breached, the petition set out no cause of action. The Supreme Court in Keiley v. CitizenSavings Bank c. Co.,
3. Accordingly, since the original petition stated no cause of action, there was nothing by which to amend, and the court did not err in striking the amendment to the petition, where the plaintiffs sought to recover one-half of the cost of erecting the line fence, based upon what was alleged to be an oral contract after the deed was executed and a ratification by the defendant *284
in the erection of the line fence after the deed was executed. This is a correct procedure under all of the appellate decisions so far as we have been able to ascertain. When the plaintiffs attempted to do so, they set out a new and distinct cause of action. This is true since the petition as originally brought was for the breach of the provisions of the original executory contract of sale, which was merged by operation of law into the deed. It follows that the amendment in the second count set up a new and distinct cause of action. This principle is discussed fully in the case of Ellison v. Georgia R. Co.,
4. Counsel for the plaintiffs argues at length the principle that a petition between the same parties may contain as many counts as there are cause of action of a similar nature in favor of a plaintiff against a defendant — that is to say, causes of action ex contractu and ex delicto. There is no dispute but that this contention is a clear principle of the law of procedure. See, in this connection, Cooper v. Robert Portner BrewingCo.,
5. Much has been said, both in the briefs and in the oral arguments of counsel for both sides, in regard to the proper construction of the ruling in Laslie v. Gragg Lumber Co.,
6. There are two other contentions of the plaintiffs which we will discuss together. The first complains of the court's refusal to pass upon the demurrers of the plaintiffs to the answer; and the second, of the refusal to allow the third amendment of the plaintiffs, which amendment was offered after the court had signed an order dismissing the case. Neither of these contentions is tenable and needs, we think, any further elaboration and citation of authority.
The appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial judge and dismissing the petition on general demurrer.
Judgment affirmed. MacIntyre, P. J., and Townsend, J. concur.