Opinion
40296.
DECIDED OCTOBER 18, 1963. REHEARING DENIED OCTOBER 30, 1963.
Trover. Cobb Superior Court. Before Judge Henderson.
Doyle C. Brown, Andrew A. Smith, Marvin O'Neal, Jr., for plaintiff in error.
Edwards, Bentley Awtrey, A. Sidney Parker, contra.
A petition in trover brought by a plaintiff (Capitol Enterprises, Inc.) against a defendant (Henry T. Moore) alleging, "First: Henry T. Moore of said county, the defendant herein, is in possession of the following property, to wit: Wittnauer Camera and Projector serial number 34010 as described in a Conditional Sales Contract dated September 8, 1961 executed by said Henry T. Moore of the value of $443.88 to which plaintiff claims title or a valuable interest therein and the right of possession. Second: That said defendant refuses to deliver the above described property to petitioner or pay it the profits thereof," is in conformity with what is known as the statutory or "Jack Jones" form of pleadings (Ga. L. 1847, p. 490), and is not subject to general demurrer. Macon c. R. Co. v. Meador Bros., 67 Ga. 672; Dugas v. Hammond, 130 Ga. 87 ( 60 S.E. 268); Crews v. Roberson, 62 Ga. App. 855 (1) ( 10 S.E.2d 114); Breen v. Barfield, 80 Ga. App. 615 ( 56 S.E.2d 791); Greenwood v. Stewart, 86 Ga. App. 764 ( 72 S.E.2d 539); Hurt Quinn, Inc. v. Keen, 89 Ga. App. 4 (1), 5 ( 78 S.E.2d 345); Abney v. Thomas Auto Sales Co., 93 Ga. App. 224 (2) ( 91 S.E.2d 189); Herrington v. Cason Goins, Inc., 97 Ga. App. 747 (1) ( 104 S.E.2d 502); Allen v. Harvey Motor Co., 103 Ga. App. 277 (1) ( 119 S.E.2d 50). The additional phrase, "as described in a conditional sales contract dated September 8, 1961, executed by Henry T. Moore," is what it purports to be, descriptive only, Breen v. Barfield, 80 Ga. App. 615, supra, and is not an additional allegation of evidentiary fact from which inferences may legitimately arise adverse to the plaintiff's right to recover; nor is the petition made ambiguous by such additional averments, nor are such allegations in direct conflict with the plaintiff's right of recovery, as was true in Hurt Quinn, Inc. v. Keen, 89 Ga. App. 4 (2, 3), supra; Abney v. Thomas Auto Sales Co., 93 Ga. App. 224 (3), supra; General Motors Acceptance Corp. v. Jones, 98 Ga. App. 391 ( 106 S.E.2d 67); nor would said allegation convert said action into an action in trover based on a conditional sales contract in which instance it would be necessary to allege a default by the defendant giving the holder a right to possession upon demand. See American Nat. Bank c. Co. v. Davis, 104 Ga. App. 586 ( 122 S.E.2d 477).
It follows, therefore, that the trial judge erred in sustaining the general demurrer to the petition in the instant case.
Judgment reversed. Bell, P. J., and Hall, J., concur.