Summary
In Holcombe v. Parker, 98 Ga. App. 17, 19 (104 S.E.2d 595), it was said: "In Southern Ry. Co. v. Grant, 136 Ga. 303, 304 (71 S.E. 422), it is held not necessary that the petition set forth the ground upon which the plaintiff claims the defendant is liable to him on the account upon which the suit is brought."
Summary of this case from Fulton Air Service, Inc. v. LakeOpinion
37212.
DECIDED JULY 16, 1958.
Action on account. Cobb Superior Court. Before Judge Manning. April 16, 1958.
James C. Holcombe, for plaintiff in error.
Vernon W. Duncan, contra.
The petition in its final form set forth a suit on account plainly, fully, and distinctly, and was not subject to demurrer.
DECIDED JULY 16, 1958.
W. S. Holcombe sued Paul Parker on an open account in Cobb Superior Court.
The petition as finally amended showed: "That defendant is a resident of said State and county, and subject to the jurisdiction of this court; that defendant is indebted to petitioner in the sum of two hundred sixteen and no/100 ($216) dollars upon an open account, copy of which is attached hereto, made a part hereof, marked Exhibit `A'; plaintiff further shows that a demand for payment has been made upon defendant, and the same has been refused; wherefore, plaintiff prays that this his amendment be allowed, subject to objections, and that he do have and recover against the defendant on this, his amended petition, in the full sum of two hundred sixteen and no/100 ($216) dollars, plus costs." The bill of particulars annexed thereto as Exhibit "A" read:
In Account with W. S. Holcombe.
Landscaping, installing septic tanks, pumping septic tanks, general grading and bulldozer work.
"Marietta, Ga., Aug. 17, 1954. Mr. Paul Parker, 108 Chinquapin Drive, Marietta, Ga. Phone 8-1627. 1323 E. Washington Ave. 2 8-17-54. Opening ditch from 108 Chinquapin Drive, Whitlock Heights, Marietta, Georgia, from house to sanitary sewer in the street in front of said house and laying 270 feet of four-inch sewer line connecting the bathroom and kitchen sink in the home known as 108 Chinquapin Drive, according to the present system of numbering in Marietta, Georgia, to the sanitary sewer line located in the street in front of said house and closing the ditch at .80¢ per foot. $216." The defendant demurred to the petition on the following grounds: "The defendant specially demurs to paragraph 2 of plaintiff's petition as amended in that said paragraph is vague and indefinite in that it fails to state who contracted with the plaintiff for said work, when said contract was entered into, the terms and conditions of said contract and said petition as a whole fails to show how your defendant became liable for this account and because of the uncertainty of said paragraph 2 said paragraph should be stricken; the defendant specially demurs to paragraph 3 of plaintiff's petition as amended in that said paragraph fails to show when said demand was made or upon whom said demand was made and therefore, said paragraph is vague, indefinite and uncertain and should be stricken; defendant specially demurs to Exhibit `A' as set forth in paragraph 2 in that said Exhibit `A' fails to constitute that part which was labor and that part which was material, all of which this defendant is entitled to know and therefore said exhibit should be stricken."The judge passed an order requiring the petition to be amended in certain particulars. Upon the plaintiff's failure to comply with the order the judge entered up a judgment dismissing the petition. To this judgment the plaintiff excepts and the case is here for review.
The sole question for determination in this case is whether the trial court's judgment sustaining the demurrers and dismissing the petition was correct.
If the petition in its final form met the requirements of the act of 1847 (Ga. L. 1847, p. 203) and of Code § 81-101 it was not subject to demurrer. Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, 775 ( 151 S.E. 518).
The act of 1847 provides that to set forth a cause of action upon an account the petition must allege: the defendant, the resident of a named county, is indebted to the plaintiff so many dollars on an account "as will fully appear by reference to a bill of particulars" annexed to the petition and that the defendant has refused to pay the account. It is, of course, the intention of the statute that the bill of particulars be attached to the petition. The requirements of Code § 81-101 applicable to suits on accounts and other actions are that the petition plainly and fully and distinctly set forth the ground of the complaint. This demand is met when the petition, or the bill of particulars, or both of them "fairly apprize the defendant of the character of the demand, so as to enable him to prepare his defense." Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, supra.
In Southern Ry. Co. v. Grant, 136 Ga. 303, 304 ( 71 S.E. 422) it is held not necessary that the petition set forth the ground upon which the plaintiff claims the defendant is liable to him on the account upon which the suit is brought.
The petition in the instant case refers to the annexed bill of particulars for information as to the nature of the grounds upon which the plaintiff claims the right to recover on the account sued upon. The bill of particulars is explicit and full. So we reach the conclusion that the plaintiff's case was well pleaded by the petition in its final form, and met the statutory requirements of both the act of 1847 and Code § 81-101.
In making this ruling we have considered the defendant's insistence that the due date of the account sued upon was not shown by the bill of particulars.
In Busby v. Marshall, 125 Ga. 645 ( 54 S.E. 646), it is held that the averment that the account became due at a particular time is necessary to plead a suit on account under the short form prescribed by the act of 1847. This holding is in conflict with numerous holdings of the Supreme Court exemplified by Dugas v. Hammond, 130 Ga. 87 ( 60 S.E. 268) in which it is held that no allegations except those required by the act are necessary to set forth a cause of action on an open account. The act provides that it be alleged that the defendant is indebted to the plaintiff on the account sued upon. This is a declaration that the account is due and no further averment in that respect need be made. The Busby case is clearly contrary to the pronouncement of Bland v. Strange, 52 Ga. 93, 94 which it cites as supporting authority. In the Bland case on page 95 is the holding: "The common counts in assumpsit are promises upon debts due before that time, but the precise day is not stated usually in assumpsit. In our statutory form all that is required is to state that so much is due upon an account, with a reference to a bill of particulars attached: Code § 3393."
In our opinion the demurrers to the petition raised no valid objection, and the trial court erred in sustaining them.
Judgment reversed. Felton, C. J., and Nichols, J., concur.