Opinion
32922.
DECIDED MAY 3, 1950.
Complaint on contract; from Savannah City Court — Judge MacDonell. December 13, 1949.
Walter W. Hinely, for plaintiff in error.
Alphene W. Dowell, contra.
"In order for a vendee of personalty in a contract of sale, reserving title to the vendor until the full payment of purchase money to rescind the contract or for an abatement in the price on account of its destruction it must affirmatively appear that the property was destroyed without the vendee's fault."
DECIDED MAY 3, 1950.
B. C. Mobley, whom we shall call the plaintiff, entered suit against H. Hill, whom we shall call the defendant, alleging substantially in paragraph 2 as follows:
"That said defendant is indebted to your petitioner in the amount of one thousand four hundred ($1,400) dollars principal, two hundred ten ($210) dollars attorney's fees, and interest at the rate of 8% from January 15, 1949 in the amount of sixty-five dollars and thirty-three cents ($65.33), making a total of one thousand six hundred seventy-five dollars and thirty-three cents ($1,675.33) due, by reason of that certain contract dated October 15, 1947, to purchase that certain business known as Bennie's Market, Lawton and Hall Streets, Twickenham Terrace, Savannah, Chatham County, Georgia, copy of said contract being hereto attached, marked `Exhibit A' and made a part of said petition."
A copy of the contract was attached to the petition as an exhibit. The copy contract reveals that the plaintiff sold the defendant the place of business for $2500, $850 cash and deferred monthly instalments of $50. The first instalment payment was to be made on October 15, 1947, one month after the contract was executed. The contract provided that the title to the property sold was to remain in the plaintiff until the purchase-price was fully paid. The defendant assumed certain outstanding indebtedness against the market. The instrument provided also for the payment of 15% attorney's fees in the event the defendant defaulted in the payments, and the defendant was to receive the open accounts along with the business. The defendant filed a general demurrer, whereupon the plaintiff amended his petition by striking in its entirety paragraph 2 and inserting a new paragraph 2 as follows:
"That the said defendant is indebted to your petitioner in the amount of nine hundred ($900) dollars principal; ninety ($90) dollars attorney's fees and interest at the rate of 8% per annum from January, 1949, in the amount of forty-eight ($48) dollars, making a total of one thousand thirty-eight ($1,038) dollars due, by reason of that certain contract dated October 15, 1947, to purchase that certain business known as Bennie's Market, Lawton and Hall Streets, Twickenham Terrace, Savannah, Chatham County, Georgia, copy of said contract being hereto attached, market Exhibit `A', and hereby made a part of said petition, eighteen (18) promissory notes dated October 15, 1947, in the amount of fifty dollars ($50) each, given with said contract, to cover payment of the purchase of said business, which said notes were deposited in the Savannah Bank and Trust Company and were not paid by said defendant, copy of said notes being hereto attached, marked Exhibit `B', and hereby made a part of said petition."
The plaintiff also amended by adding a new paragraph numbered 2 (a) as follows:
"Plaintiff shows to the court that following the purchase of this business by defendant, H. Hill, that on October 23, 1947, your petitioner transferred four thousand ($4000) dollars in insurance on the stock and fixtures of said business to said defendant, H. Hill, and said insurance was renewed by the said defendant, H. Hill, under date of January 13, 1948, through C. D. Pedersen Insurance Agency and said four thousand ($4000) dollars insurance on stock and fixtures was in force in August, 1948, when defendant, H. Hill, sustained a fire loss to the stock and fixtures of said business, and the insurance company paid to him the sum of two thousand seven hundred fifty-one dollars and twenty-six cents ($2751.26) on September 21, 1948, to cover defendant's loss sustained by said fire and although petitioner has made demand upon said defendant, H. Hill, to pay him the balance due on said notes, he has refused and still refuses to pay the balance of the purchase-price thereof, which defendant has already received from the insurance company and which should have been paid to said petitioner on September 21, 1948, as soon as defendant, H. Hill, received payment from said insurance company, after his promise to do so."
To the petition as amended, the defendant filed the following demurrer:
"1. That paragraph two (2) of the plaintiff's petition as amended does not set forth a cause of action for attorney's fees in any amount whatsoever against this defendant.
"2. That the plaintiff's petition as amended fails to set out a cause of action against this defendant.
"3. That paragraph two A(2-A) of the plaintiff's petition as amended is hereby especially demurred to in that said paragraph attempts to set out a new and distinct cause of action not previously pleaded in the plaintiff's original petition."
The court overruled the demurrer and dismissed the petition. It is this judgment upon which error is assigned.
It will be noted that the demurrer to the amended petition is general except paragraph 3 which is a special demurrer, on the ground that the amendment sets forth a new and distinct cause of action. It will be noted that paragraph 1 of the demurrer states that the petition as amended does not set forth a cause of action for attorney's fees in any amount against the defendant as provided for in Code § 20-506. This section provides that before attorney's fees can be recovered, notice as provided for therein must be given. The defendant did not demur to the petition specially for this reason. Had he done so, and the plaintiff had not amended, alleging that the notice had been given, that allegation of the petition should have been sustained. We think that this was an amendable defect but the petition as to attorney's fees was sufficient to withstand a general demurrer.
Paragraph 3 of the demurrer attacks the petition on the ground that the amendment set forth a new and distinct cause of action. We cannot agree with this contention.
Paragraph 2 of the demurrer to the petition is a general demurrer. We will now discuss that. Code § 96-108 provides: "Where property is sold and delivered, but title is not to pass until payment in full of the purchase money, and the property is lost, damaged, or destroyed without the vendee's fault, he is entitled to a rescission of the contract or to an abatement in the price, unless it is otherwise agreed in the contract of sale."
The defendant contends that he is entitled to a rescission of the contract or to an abatement in the purchase price under that Code section because the title did not pass from the plaintiff to him and that since the property purchased by him was destroyed by fire that the loss fell on the plaintiff. He cites in support of his contentions a number of decisions: Randle v. Stone Co., 77 Ga. 501; Sparrow v. Pate Bro., 67 Ga. 352; Gunn v. Knoop, 73 Ga. 510; Norris v. Manget-Brannon Co., 18 Ga. App. 639 ( 90 S.E. 79).
This case is here on general demurrer. Code § 96-108, quoted hereinabove, does not provide that ipso facto where title is retained in the seller and in the event of loss or damage, that the vendee is entitled to a rescission of the contract or to an abatement in price. But this section provides that if property is destroyed without the vendee's fault and he suffers loss that the vendee has his remedy under the Code section. We think this is a matter of defense and cannot be settled by demurrer. Moreover, under the allegations of the petition of this case, the defendant suffered no loss whether or not he was at fault. It must be kept in mind that the insurance policy was transferred by the vendor to the vendee in the transaction and the vendee collected according to the allegations of the petition more than the purchase-price. It would seem that under the facts of this case these are questions for the jury. Certainly it is a jury question as to whether the articles were burned without fault of the defendant. See, in this connection, Randle v. Stone Co., supra. See also Kleim Son v. Vandiver, 24 Ga. App. 290 ( 100 S.E. 654), wherein this court held that the loss imposes the burden on the defendant in such a case as here, to show that the loss of the property was without his fault. The same principle applies to property destroyed by fire. In this connection, see also Wells v. Fay Egan Co., 143 Ga. 732 (3) ( 85 S.E. 873). The principles enunciated in that case are a complete answer to the defendant's contentions here that the court erred in sustaining the demurrer, and dismissing the petition on a general demurrer.
The court did not err in the instant case in its judgment overruling the general demurrer.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.