Opinion
39022.
DECIDED SEPTEMBER 19, 1961. REHEARING DENIED OCTOBER 5, 1961.
Complaint. DeKalb Civil Court. Before Judge Mitchell.
Almon, Clien McGregor, Everett L. Almon, for plaintiff in error.
Thomas E. Moran, contra.
A petition to recover a sum of money alleged to be due by the defendant to the plaintiff which does not allege that the sum was past due at the time of the filing of the petition does not set forth a cause of action.
DECIDED SEPTEMBER 19, 1961 — REHEARING DENIED OCTOBER 5, 1961.
The plaintiff (plaintiff in error) sued the defendants, alleging in his original petition that plaintiff traded a 1956 automobile to defendant for a 1957 model automobile; that the defendant agreed to pay an existing bill of sale to secure debt on the 1956 automobile, in the amount of $526.35; that although demand had been made upon defendants they failed and refused to pay same; that no part of the above has been paid except $205, leaving the sum of $309.35 due, for which the plaintiff sues; that plaintiff has been required to pay the $205 to the First National Bank of Atlanta in accordance with the bill of sale to secure debt and note. The court sustained the defendants' general demurrer to the petition. The plaintiff amended by adding the allegation that the defendants agreed to pay the bill of sale to secure debt "in that, the above-said bill of sale to secure debt and note in favor of the First National Bank of Atlanta was given by your petitioner and that as part of the consideration of the automobile trade referred to above, defendants herein did orally agree to pay to your petitioner the sum of five hundred twenty-six dollars and 35 cents ($526.35) in order that petitioner could pay off the existing bill of sale to secure debt and note above referred to on the above-said 1956 model automobile."
The court sustained the defendants' renewed general demurrer to the petition as amended, and upon this judgment the plaintiff assigns error.
Neither the original petition nor the amended petition alleges the terms of payment or the time the sum owed by the defendant was due to be paid. A petition seeking to recover a sum of money alleged to be due by the defendant to the plaintiff which does not allege that the sum was past due at the time of the filing of the petition does not set forth a cause of action. Five Minute Vulcanizer c. Co. v. Fleming, 23 Ga. App. 641 ( 99 S.E. 225).
Judgment affirmed. Felton, C. J., and Bell, J., concur.