Opinion
38438.
DECIDED OCTOBER 20, 1960.
Action on account. DeKalb Civil Court. Before Judge Morgan. May 17, 1960.
Thomas T. Purdom, for plaintiff in error.
John C. Lee, Casper Rich, contra.
A special demurrer properly presented is meritorious where, in a suit on an open account for purchases made under a credit card of a petroleum company, the bill of particulars fails to set forth the date of each purchase, place of each purchase, the amount of each purchase, and the specific merchandise, goods, or services purchased on each occasion.
DECIDED OCTOBER 20, 1960.
The plaintiff brought its action against the defendant on an open account for charges for sales of petroleum products, services and/or auto accessories purchased on presentation of a Gulf credit card which had been issued to the defendant. Attached to the petition was a sworn bill of particulars as Exhibit "A", setting forth the account with the defendant and stipulated charges for petroleum products, services, and auto accessories by months as follows:
"December 1958 $203.59 January 1959 154.06 February 139.16 March 215.28 April 55.94 May 111.98 ________ 879.92 Prin. 4.67 Int. ________ 884.59 Plus cost." This sworn bill of particulars was dated June 18, 1959. On the 7th day of July the defendant filed special demurrers to the plaintiff's petition, which demurrers, after amendment of the petition, were renewed on July 10, 1959. These demurrers as renewed object that (1) there is no itemized bill of particulars attached; (2) said Exhibit "A" attached thereto as a bill of particulars is so defective that it does not constitute an itemized bill of particulars; (3) said Exhibit "A" does not show: (a) The date of each purchase, (b) the place of each purchase, (no "(c)" appears in the record), (d) the amount of each purchase, (e) the specific merchandise, goods, or service purchased each time on Gulf Credit Card No. 737-6226, or (f) the name of the purchaser on each transaction. While the bill of exceptions recites that additional special demurrers were filed on July 10, 1959, there is no assignment of error on any ruling of the trial court on the additional demurrers.The bill of exceptions as certified by the trial judge shows that the defendant's demurrers as renewed were overruled on March 22, 1960. On the 17th day of May the case came on for hearing, and after hearing the evidence, the trial court, sitting without a jury, entered a verdict and judgment for the plaintiff for the amount of $852.92 principal and $16.25 costs. The defendant excepted only to the order of the trial court overruling the special demurrers as renewed.
The defendant's special demurrers as renewed to the plaintiff's bill of particulars annexed to the petition contend that the suit upon the plaintiff's account was not sufficiently itemized. The bill of particulars sets forth the charges for petroleum products, services, and/or auto accessories purchased on the presentation of the Gulf credit card issued to the defendant, and listed the total only of charges by months, beginning with December, 1958, and running through April, 1959. The special demurrers seek to determine the date, place, and amount of each purchase, the specific merchandise, goods, or service purchased each transaction. In short, the objections to this bill of particulars raise the issue as to how particular a bill of particulars must be. The Code provides in § 81-105, inter alia, "In suits on accounts a bill of particulars should be attached." There are innumerable decisions pertaining to this point annotated under this section, under Code § 81-101, and under Code § 81-304.
In Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771 ( 151 S.E. 518), this court held that in a suit upon an account, it is sufficient to allege that the defendant is indebted to the plaintiff in a stated amount on an account, and further that while the account should be itemized in a bill of particulars attached to the petition, unnecessarily minute and detailed statements are not required. "As to itemization it is enough to state the account with such fullness and specification as will confine the plaintiff to a particular cause of action, and fairly apprise the defendant of the character of the demand so as to enable him to prepare his defense." Ibid, p. 777. See also Walker v. Industrial Stores Co., 37 Ga. App. 448 ( 140 S.E. 519); Russell v. Wineburg, 30 Ga. App. 319 ( 117 S.E. 666); and Shores-Mueller Co. v. Bell, 21 Ga. App. 194 ( 94 S.E. 83).
In a supplemental brief filed by the defendant it is contended that the recent case of Parker Heating Co. v. Minneapolis-Honeywell Regulator Co., 102 Ga. App. 27 ( 115 S.E.2d 410), is in point with the situation here. There the exhibit attached to the petition did not contain any statement of the type of merchandise, services, or supplies rendered. It merely gave the dates, debits, credits, and contained a reference column which listed certain number opposite the dates and amounts of the sales; the meaning of these reference numbers did not appear in either the exhibit or the petition. This court held that such an exhibit was insufficient as a bill of particulars or itemization of the account.
We consider now the defendant's special demurrers as renewed which, while they assign three separate grounds, in effect only attack the bill of particulars as insufficient. We agree that, consistent with the policy as expressed by the decisions of this court, the plaintiff should have set forth the date of each purchase, the place of each purchase, the amount of each purchase, and the specific merchandise, goods, or services purchased on each occasion. As the plaintiff's bill of particulars was drawn it was not sufficient to apprise the defendant of the character of the demand leveled against him so as to enable him to prepare his defense. Accordingly, we hold that the defendant's special demurrers 3(a), 3(b), 3(d), and 3(e) were meritorious, and it was error for the trial court to overrule them. This ruling necessarily answers special demurrer number 1, and the remaining demurrers have no merit.
Since no proper assignment of error was made in the bill of exceptions upon any ruling the trial court may have entered on the additional special demurrers filed by the defendant, this court will not consider them.
The error in the judgment of the trial court overruling the defendant's special demurrers as enumerated requires the reversal of the order and judgment. It follows that all of the subsequent proceedings in the trial were nugatory.
Judgment reversed. Felton, C. J., and Nichols, J. concur.