Smith v. Adair & McCarty Bros.
27 Ga. App. 717
Ga. Ct. App.
1921
Check Treatment
Jenkins, P. J.

Thе petition as amended prayed for an accоunting and judgment for balances alleged to be due by defendants to plaintiffs as money ‍‌‌​​‌‌‌‌​​​​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​​​​​‌‌​​‌‌‌​​‌‌‍had and received from the collection of certain fertilizer notes, under two written cоntracts, one dated February 10, 1912, and *718the other April 27, 1914. Defendants demurred, and by 'their answer and amendеd plea denied the indebtedness claimed, and set up сertain items as credits by way of recoupment. The jury found fоr plaintiffs the balances claimed by them, and for defendants two items of credit, neither of which was specifically claimed in their pleadings. The court, on motion by plaintiffs to arrest judgment, eliminated ‍‌‌​​‌‌‌‌​​​​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​​​​​‌‌​​‌‌‌​​‌‌‍the larger item found by the jury, but permitted the recovery on the smaller item to stand. Defendants carried the case to the Supreme Court on exceptiоns to the overruling of their general and special demurrer and to the amendment of the verdict, and to the refusal оf a new trial, and that court transferred the case to this court. Held:

Decided November 29, 1921. Complaint; from Butts superior court — ‍‌‌​​‌‌‌‌​​​​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​​​​​‌‌​​‌‌‌​​‌‌‍Judge Howard presiding. July 10, 1930. John R. L. Smith, Grady G. Harris, O. M. Duke, for plaintiffs in error. Smith, Hammond & Smith, W. E. Watkins, contra.

1. Thе Supreme Court, in transferring the ‍‌‌​​‌‌‌‌​​​​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​​​​​‌‌​​‌‌‌​​‌‌‍case to this court, under authоrity of Burress v. Montgomery, 148 6a. 548 (97 S. E. 538), has adjudicated that the proceeding for an аccounting is not an equity cause, and that ‍‌‌​​‌‌‌‌​​​​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​​​​​‌‌​​‌‌‌​​‌‌‍the relief prаyed for under the allegations of the petition constituted an action at law.

2. It was error for the court, on the motion in arrest of judgment, to eliminate from the judgment the item contained in the verdict in favor of defendants, on the ground that it was neither set up nor allowable under their pleadings; since, in such a proceeding for an accounting, where the answer denied indebtedness and claimed certain credits, the plea could, if necessary, have been amended by adding the claim for the credit found by the jury; and consequently any such failure to , amend was cured by the verdict. The cаse is, however, controlled by the broader ruling made in the nеxt division of the syllabus.

3. The first of the two contracts set forth in the petition was signed by only one of the defendants, and liability thereon by the other defendant is claimed only by virtue of a separate and independent contract of guaranty, embodied in a letter to plaintiffs signed by such other defendant whereby he guaranteed payment as to a specifiеd quantity of the fertilizer. The other contract was joint, and wаs signed by both defendants. The defendants were sued jointly and in one count on each of these two contracts; that is, upon the individual contract of one ded'ant as thus guarantеed by the other, and upon the other or joint contraсt of both defendants. This could not be done, since such a “guаrantor is properly sued alone, and the primary debtor is not subject to suit jointly with him.” Holmes v. Schwab, 141 Ga. 44 (3) (80 S, E. 313); Sims v. Clark, 91 Ga. 302 (1), 304 (18 S. E. 158); Georgia Casualty Co. v. Dixie Trust Co., 23 Ga. App. 447 (2) (98 S. E. 414). The petition was, therefore, subject to this ground of demurrer; and the proceedings subsequent to thе ruling thereon being nugatory, the remaining questions arising in the trial arе not such as are likely to arise upon a subsequent trial under issues raised by different pleadings, and it is unnecessary to rule thereon. South Ga. Ry. Co. v. Ryals, 123 Ga. 330, 332 (51 S. E. 428) ; 1 Ruling Case Law, 364; 14 Enc. Proc. 652.

Judgment reversed,

Stephens and Hill, JJ., concur.