Summary
In Thyer Mfg. Corp. v. Drake, 217 Ga. 114 (121 S.E.2d 136) (1961), the court assumed, without deciding, that prefabricated houses were "tangible personal property" subject to our sales tax. As anyone who attempts to pass one on the highway knows, modular homes can be seen, weighed, measured, etc.
Summary of this case from Adrian Housing Corp. v. CollinsOpinion
21242.
ARGUED JUNE 13, 1961.
DECIDED JULY 6, 1961. REHEARING DENIED JULY 10, 1961.
Certiorari to the Court of Appeals of Georgia — 103 Ga. App. 351 ( 119 S.E.2d 131).
Perry, Walters Wagstaff, H. H. Perry, Jr., for plaintiff in error.
P. Walter Jones, Robert M. Drake, contra.
Eugene Cook, Attorney-General, Ben F. Johnson, Robert W. Goodman, Deputy Assistant Attorneys-General, for parties at interest.
The petition stated a cause of action, and the Court of Appeals erred in reversing the judgment of the trial court overruling the defendant's general demurrer.
ARGUED JUNE 13, 1961 — DECIDED JULY 6, 1961 — REHEARING DENIED JULY 10, 1961.
The Thyer Manufacturing Corporation sued M. G. Drake, doing business as Drake Construction Company, and in so far as material it was alleged: (1) The defendant is a resident of the county and subject to the jurisdiction of the court; (2) the plaintiff is a manufacturer of prefabricated houses built in sections and sold in units designated as house packages; (3) the plaintiff sold the defendant house packages which were delivered to the defendant in Georgia; (4) during the period from January 1, 1954, through November 5, 1956, the plaintiff made sales to the defendant in the amount of $260,649.39; (5) the defendant has not paid sales or use taxes to the State of Georgia on the sales made to him by the plaintiff; (6) the plaintiff as a dealer, under the Georgia Retailers' and Consumers' Sales and Use Tax Act, was required to pay a 3 per cent sales or use tax on the sales made to the defendant; (7) the plaintiff has paid to the State of Georgia $7,806.40, which is 3 per cent of the sales made by the plaintiff to the defendant; (8) the $7,806.40 paid to the State of Georgia by the plaintiff is a debt owed by the defendant to the plaintiff; (9) the defendant is indebted to the plaintiff and has failed and refused to pay the indebtedness of $7,806.40, notwithstanding that the plaintiff has made repeated demands for payment. The prayers were for process and for judgment against the defendant in the sum of $7,806.40.
The defendant's general demurrer to the petition was overruled. By agreement of the parties the cause was submitted to the trial judge without the intervention of a jury. A judgment was rendered for the plaintiff for the amount alleged to be due. The defendant excepted to the judgment overruling his general demurrer and to the judgment for the plaintiff in the amount alleged to be due.
The Court of Appeals reversed the judgment of the trial court overruling the defendant's general demurrer. It was stated in the opinion of the Court of Appeals in part: "The trial court having erred in overruling defendant's general demurrer, all further proceedings were nugatory, . . ." The plaintiff's application for writ of certiorari was granted.
Under the Georgia "Retailers' and Consumers' Sales and Use Tax Act," the term "dealer" is defined in part as follows: "The term `dealer' as used in this Act shall include every person, as used in this Act, who manufactures or produces tangible personal property for sale at retail, for use, or consumption, or distribution, or for storage to be used or consumed in this State." Ga. L. 1951, pp. 360, 368, § 4 ( Code Ann. Supp. § 92-3404a). Under the rulings of this court in Williams v. Bear's Den, Inc., 214 Ga. 240 ( 104 S.E.2d 230) and Oxford v. J. D. Jewell, Inc., 215 Ga. 616 ( 112 S.E.2d 601) the responsibility for collecting the taxes levied by the act from the purchaser and remitting to the State Revenue Commissioner is on the dealer. The plaintiff shows by its allegations that it is a "dealer," that it sold merchandise to the defendant upon which the defendant did not pay sales taxes to the State of Georgia, and that the plaintiff has paid the taxes due. The right of the dealer to recover for taxes paid where they are not paid by the purchaser is provided for in the act as follows: "Dealers shall, as far as practicable, add the amounts of the tax imposed under this Act to the sales price or charge, which shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts." Ga. L. 1951, pp. 360-373, sec. 12 (b) ( Code Ann. Supp. § 92-3415a).
In order for a pleading to be good as against a general demurrer, it is not required that the plaintiff anticipate a possible defense by the defendant. If the plaintiff by his petition does anticipate a possible defense by the defendant, it must be effectively avoided or the petition is subject to general demurrer. Swafford v. Glaze, 206 Ga. 574 ( 57 S.E.2d 823); Wright v. Pritchett, 213 Ga. 865 ( 102 S.E.2d 602); Columbian Mutual Life Ins. Co. v. Carter, 58 Ga. App. 150 ( 197 S.E. 925); Douglas v. McNabb Realty Co., 78 Ga. App. 845 ( 52 S.E.2d 550). In the present case the petition states a cause of action for the taxes alleged to be due, and no defense is anticipated by any allegation contained in the petition.
Judgment reversed. All the Justices concur.