Opinion
33740.
DECIDED NOVEMBER 21, 1951.
Complaint; from Fulton Civil Court — Judge Arnold. June 21, 1951.
Hudson LeCraw, for plaintiffs.
Fraser Shelfer, for defendant.
1. "An amendment to a petition, made after the first term, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment."
( a) Where the additional grounds of demurrer, pointing out defects in the petition as first amended, were filed more than a month after the petition was first amended and at a subsequent term, and after the court had ruled upon such of the special demurrers as the defendant by renewal had interposed to the petition as first amended, these demurrers were too late to be considered, and it was error to sustain them.
2. Where the general demurrer and the three special demurrers to the petition as first amended were overruled, thereby adjudicating that the petition set out a cause of action, such judgment, not being excepted to, fixed the law of the case; and where the second amendment was immaterial insofar as having the effect of reopening the whole petition to demurrer, it was error for the court to sustain the renewed and additional demurrers to the petition after the second amendment thereto was filed, and to dismiss the petition.
DECIDED NOVEMBER 21, 1951.
James T. Garner, Horace N. Cannon, C. Ransom Morgan, and Reuben T. Braswell, as plaintiffs, sued William Wolport for the recovery of $300 as money paid to the defendant under a contract which the defendant refused to perform. The petition was filed on October 16, 1950, and was first amended on April 6, 1951, before the demurrers filed thereto were ruled on, and as first amended it alleged in substance the following facts: The plaintiffs are the deacons of the East Atlanta Primitive Baptist Church, duly elected and serving said church as such and are members of said church, bringing this suit for and on behalf of the members of said church, which is of the congregational type, an unincorporated religious society engaged in propagating the religious doctrine of the Primitive Baptist faith. In the regular conference of the named church, held on October 14, 1950, the church authorized the plaintiffs to employ counsel and to take such steps as they thought advisable and necessary to file suit against the defendant on a breach of the contract with the church. The defendant entered into a contract with the church and its officers and agents, to wit: C. R. Morgan, M. M. Abscher, and A. O. Shook, and the work which the defendant agreed to do but refused to do was for the benefit of the church and the members thereof. In February, 1950, the plaintiffs entered into a contract with the defendant to make certain enumerated repairs to the church building for $300. The plaintiffs were acting for and on behalf of the named church and as agents and trustees of and for the entire membership of said church in bringing this suit against the defendant to recover the $300 for the benefit of all of the members of said church for breach of the contract to repair the church. The defendant breached the contract by refusing to make the repairs as agreed for the benefit of the members of said church. The plaintiffs attached to the petition a copy of said contract, marked Exhibit A, and made it a part of the petition. Exhibit A was a letter from the defendant to said church, submitting an estimate for certain repairs to the church building, and concluding with the following statement: "I appreciate the opportunity for quoting you on this work and assure you, that if awarded a contract, I will give you a strictly first class job in line with above specifications, and a job that will be entirely satisfactory and give many years of service. Please advise if I may serve you further in this matter." The plaintiffs paid $300 to the defendant, and the defendant agreed to do the work specified in the petition, but he breached his contract and failed to do the work as specified or to refund the money paid to him for doing said work. The defendant has been notified by the plaintiffs that said work was not done, and the plaintiffs demanded the return of said money. The defendant refused either to do the work or to return the money.
The defendant's demurrers to the petition were filed on October 26, 1950, and were renewed on April 11, 1951, after the plaintiffs had filed their first amendment. The demurrers were: (1) that the allegations of the petition were not sufficient in law to constitute a cause of action; (2) that the allegations that the plaintiffs are the deacons of the church, duly elected and serving as such, are irrelevant and immaterial; (3) that the allegations that the church in regular conference authorized the plaintiffs to employ counsel and to file suit against the defendant are irrelevant and immaterial in that such authorization could not as a matter of law authorize the plaintiffs to file such action in their individual names; (4) that the allegations set out only a part of the contract between the church and the defendant and it is not shown who signed the contract; and (5) that the allegations that the defendant breached the contract and failed to do the work as specified are conclusions of the pleader and do not show what work was done.
On May 11, 1951, the court overruled the demurrers numbered 1, 2, 3, and 5, but sustained the fourth demurrer with leave to amend. On the same day, May 11, 1951, the plaintiffs filed an amendment to paragraph 4 of the petition, adding thereto an allegation that the contract was an oral one between the defendant and the plaintiffs, and also striking the words, "contract, marked Exhibit A" (italicized in the statement above), and substituting therefor the following: "proposal of the defendant, which was accepted by the plaintiffs for and on behalf of the [named] church, and which by the acceptance of said proposal by plaintiffs for the use of the church, the same became a part of said oral contract, said copy being marked Exhibit `A'."
On May 21, 1951, the defendant again renewed his same demurrers to the petition as twice amended, adding grounds which will be referred to in the opinion in this case. This demurrer was sustained, and on June 21, 1951, the petition was dismissed. To this ruling the plaintiffs excepted.
1. The bill of exceptions shows that the petition was filed returnable to the November, 1950, term of the Civil Court of Fulton County. The defendant filed his general and special demurrers to the petition on October 26, 1950, before the November term. The plaintiffs' first amendment to their petition was filed on April 6, 1951, before the defendant's demurrers were ruled on. On April 11, 1951, the defendant renewed his original demurrers to the petition, and the hearing on the renewed demurrers to the petition as first amended took place a month later, on May 11, 1951, when the general demurrer was overruled along with three of the special demurrers, and the special demurrer numbered 4 was sustained with leave to amend. The demurrer sustained was on the ground that paragraph 4 of the amended petition set out only a part of the contract and did not show who had signed the contract.
The plaintiffs filed their second amendment to the petition on May 11, 1951, and this amendment sought to and did meet the complaint made by the special demurrer which had been sustained. It was alleged in this second amendment that Exhibit A, previously referred to as a contract, was a written proposal which had been accepted by the plaintiffs, thereby forming an oral contract under which the money sued for had been paid to the defendant.
On May 21, 1951, the defendant renewed his demurrers to the petition as amended for the second time, adding grounds of demurrer, to the effect that the petition showed that the cause of action was in the church and not in the plaintiffs; that the other parties to the contract and the other members of the alleged unincorporated religious society had not been joined as plaintiffs, and that there was a nonjoinder of parties plaintiff; that it was not shown whether the plaintiffs' authority to sue was written or oral, and if in writing the resolution was not attached; that it was not alleged when the money was paid to the defendant; and that the allegations of the breach of the contract were indefinite, as it was not shown what was done and what was not done under the contract, the value of the work performed, and the date of the refusal to perform. None of these additional grounds of demurrer was directed to the matter added to the petition by the plaintiffs' second amendment. In other words, the additional grounds of demurrer point to defects which were apparent in the petition before the second amendment thereto was filed and at the time the defendant's demurrers were ruled on after the petition was first amended.
The second amendment to the petition alleged only that the contract in question was an oral one instead of a written contract, and this amendment did not open the petition to any of the additional grounds of demurrer filed after the second amendment. The petition would have been subject to a special demurrer on the ground of nonjoinder of necessary parties plaintiff had the same been filed in time, but this defect in the petition was apparent before as well as after the second amendment thereto was filed. "An amendment to a petition, made after the first term, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment." Pierce v. Harrison, 199 Ga. 197 (5 a) ( 33 S.E.2d 680). Also, for rulings to the same effect, see Wardlaw v. Southern Railway Co., 199 Ga. 97 ( 33 S.E.2d 304); Johns v. Nix, 196 Ga. 417 (1) ( 26 S.E.2d 526); Maryland Casualty Co. v. Dobson, 57 Ga. App. 594 ( 196 S.E. 300).
The additional grounds of demurrer, pointing out defects in the petition as first amended, were filed more than a month after the petition was first amended and at a subsequent term, and after the court had ruled upon such of the special demurrers as the defendant by renewal had interposed to the petition as first amended. These demurrers were too late to be considered, and it was error to sustain them. Ford v. Fargason, 120 Ga. 708 ( 48 S.E. 180); Field v. McElroy, 47 Ga. App. 735 ( 171 S.E. 300).
2. The general demurrers ruled on were that the allegations of the petition showed that the cause of action was in the church instead of the plaintiffs, and that the said allegations did not constitute a cause of action. The general demurrer and the three special demurrers to the petition as first amended were overruled, thereby adjudicating that the petition set out a cause of action. That judgment was not excepted to or set aside, and fixed the law of the case. The second amendment was immaterial insofar as having the effect of reopening the whole petition to demurrer. Accordingly, it was error for the court to sustain the renewed and additional demurrers to the petition after the second amendment thereto was filed, and to dismiss the petition.
Judgment reversed. Felton and Worrill, JJ., concur.