Opinion
41482.
SUBMITTED SEPTEMBER 9, 1965.
DECIDED SEPTEMBER 21, 1965.
Action on note. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Haas, Holland, Freeman, Levinson Gibert, William M. Sinrich, for plaintiff in error.
Howard Storey, Robert W. Storey, contra.
The trial court did not err in overruling the demurrers to the plaintiff's petition.
SUBMITTED SEPTEMBER 9, 1965 — DECIDED SEPTEMBER 21, 1965.
W. R. Grace Company filed an action against National Recording Corporation to recover the balance due on a note plus attorney's fees. Later the plaintiff filed an amendment by which it added a second count so as to seek recovery on an open account (the same amount allegedly due on the note) and thereafter the defendant's demurrers, both general and special, were overruled and it is to this judgment that the defendant now excepts.
1. "A claim for the purchase price . . . where the contract of sale has been fixed at a definite sum, is a liquidated demand; and, in the absence, as here, of proof of either contract or custom concerning payment, such purchase price is due when the material is delivered and the amount bears interest at the legal rate of 7% per annum from the date of delivery. Code § 57-110; Morris v. Root, 65 Ga. 686; McCarthy v. Nixon Grocery Co., 126 Ga. 762 ( 56 S.E. 72); Howard Supply Co. v. Bunn, 127 Ga. 663, 664 (4) ( 56 S.E. 757); Curtis v. College Park Lumber Co., 145 Ga. 601 (3) ( 89 S.E. 680); Rice-Stix Dry Goods Co. v. Friedlander Brothers, 30 Ga. App. 312 ( 117 S.E. 762)." Horkan v. Great American Indem. Co., 211 Ga. 690 (5) ( 88 S.E.2d 13).
Those paragraphs of the second count of plaintiff's petition which sought interest for the unpaid balance from the date of purchase until the time of filing suit were not subject to the defendant's demurrers attacking such allegations as conclusions not supported by the facts alleged.
2. The plaintiff's petition as originally filed sought to recover on a note. The petition was amended to show that the note was given as "evidence of an indebtedness" on an open account, and a second count was added whereby the plaintiff sought to recover the balance due on the open account.
"A suit on a note and one on an open account are both ex contractu actions and may be joined in a single action." Braswell v. Hodges, 95 Ga. App. 231, 232 ( 97 S.E.2d 588).
The amendment setting forth the circumstances surrounding the execution of the note did not constitute the pleading of evidence, but was the mere amplification of the transaction set forth in the original petition (see in this connection Woodruff v. Hennessy, 210 Ga. 819, 822, 82 S.E.2d 863), and the addition of the second count seeking to recover on the open account was not an attempt to set forth a new cause of action. Johnson v. Young, 79 Ga. App. 276 ( 53 S.E.2d 559), and citations; W. T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873 (5) ( 32 S.E.2d 574). The trial court did not err in overruling grounds 3 and 5 of the defendant's demurrers.
3. A demurrer which fails to point out wherein a particular allegation is irrelevant, immaterial, etc., is altogether too vague and general to be considered. See Gay v. Healan, 88 Ga. App. 533, 537 ( 77 S.E.2d 47); Glens Falls Indem. Co. v. Canal Ins. Co., 93 Ga. App. 588 ( 92 S.E.2d 580). Therefore, ground 4 of defendant's demurrers which attack a paragraph of the plaintiff's petition as being irrelevant and immaterial to the plaintiff's cause of action, was properly overruled.
4. Each count of plaintiff's petition set forth a cause of action and the trial court did not err in overruling the defendant's general demurrers.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.