Opinion
38435.
DECIDED SEPTEMBER 29, 1960.
Action on contract. Fulton Civil Court. Before Judge Camp. May 4, 1960.
Jas. L. Moore, for plaintiff in error.
Phillips Johnson, Inslee M. Johnson, contra.
In an action by a subcontractor against a general contractor to recover damages for an alleged breach of the subcontract by the general contractor the petition is not subject to special demurrer on the ground that a copy of the general contract is not attached to the petition (the general contract being made a part of the subcontract by reference) where the petition alleges that the plaintiff subcontractor had never received a copy of the general contract and that he was unable to obtain a copy from the attorney for the defendant. Farr v. McCook, 95 Ga. App. 749 ( 98 S.E.2d 584); Glover v. Maddox, 98 Ga. App. 548 ( 106 S.E.2d 288); Fidelity Deposit Co. v. Fine, 56 Ga. App. 729, 736 ( 194 S.E. 58); Roadway Exp. v. Jackson, 77 Ga. App. 341 (4) ( 48 S.E.2d 691). The court erred in sustaining the general demurrer to the petition and in dismissing the action.
Judgment reversed. Nichols, J., concurs. Bell, J., concurs in the judgment.
DECIDED SEPTEMBER 29, 1960.
The petition was first demurred to specially on the ground that the general contract was not attached to the petition. The court sustained this special demurrer and granted time for amendment. By amendment the plaintiff alleged that he had never received a copy of the general contract and that he was unable to obtain a copy from the attorney for the defendant. The general and special demurrers to the petition were renewed and the court sustained the general demurrer to the petition on the principle of law stated in Griffeth v. Wilmore, 46 Ga. App. 96 ( 166 S.E. 673).