53 Ga. App. 531 | Ga. Ct. App. | 1936
J. M. High Company brought suit against Ked Line Products Company, alleging that “said defendant is indebted to your petitioner in the sum of $1294.99 for merchandise, the receipt of which is evidenced by a credit memorandum receipt is
1. “ Copies of contracts, obligations to pay, or other writings, should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon. . . In suits on account a bill of particulars should be attached.” Code, § 81-105. The first sentence of this section requires that contracts should be attached to the petition, even though the indebtedness is on an open account made in pursuance of the contract, and a bill of particulars is attached. Southern Express Co. v. Cowan, 12 Ga. App. 318 (77 S. E. 208). The failure to attach such contract renders the petition subject to special demurrer; and upon failure of the pleader to amend to meet such objection, the petition may be dismissed.
2. It follows, that, the petition and the credit memorandum attached thereto in this case showing on their face that the account for merchandise referred to therein is based solely upon the terms of the merchandise-exchange contract, arid this contract being called for by timely special demurrer, the judge should have ordered that the petition be so amended as to have said contract incorporated therein or attached thereto, and upon failure of the plaintiff to comply therewith the petition would have been subject to dismissal. Southern Express Co. v. Cowan, supra. As to the proper judgment on a special demurrer reference is made to Griffith v. Wilmore, 46 Ga. App. 96 (166 S. E. 673).
3. The judge having erred in overruling defendant’s special demurrer,. this renders further proceedings nugatory. Hamilton v. Kinnebrew, 161 Ga. 495 (131 S. E. 470); City of Albany v. Brown, 17 Ga. App. 707 (88 S. E. 215); 4 Cum. Dig. 821.
Judgment reversed.