Opinion
38083.
DECIDED MARCH 2, 1960. REHEARING DENIED MARCH 24, 1960.
Action on contract. Cobb Superior Court. Before Judge Manning. October 9, 1959.
Casper Rich, John C. Lee, for plaintiff in error.
Reed, Ingram Flournoy, Robert E. Flournoy, Jr., contra.
Where the court sustained certain general and special demurrers to the plaintiff's petition, and certain of the grounds of special demurrer related to the entire cause of action and no amendment was filed by the plaintiff to meet them and there was no exception to the sustaining of the special demurrers or to any refusal by the court of opportunity to amend, the court did not err in dismissing the plaintiff's petition regardless of whether or not the general demurrer was correctly sustained.
DECIDED MARCH 2, 1960 — REHEARING DENIED MARCH 24, 1960.
Shell Oil Company filed its petition in Cobb Superior Court against Dan Michael seeking to recover alleged indebtedness under a contract between the parties. The petition, omitting formal parts, alleged that the defendant is indebted to the plaintiff in certain named amounts as principal, interest and attorney's fees as shown by his contract attached to the petition; that petitioner gave the defendant notice of intention to request attorney's fees, as required by law, a copy of said notice being attached; and that "said amounts are true, due, just and unpaid." The attached contract states in pertinent portion the following: "This guaranty, dated August 29, 1957, by Dan Michael, P. O. Box 125 of Marietta, Georgia, (herein called `Guarantors,' whether one or more), to Shell Oil Company, a Delaware corporation, with offices at 2000 Fulton National Bank Building in the City of Atlanta, State of Georgia (herein called `Shell'), Witnesseth: Whereas, James E. Starnes of Marietta, Georgia (herein called `Commission Manager'), may now be or from time to time become indebted to Shell under a certain Commission Manager's Bond in favor of Shell, dated August 29, 1957, (which indebtedness is hereinafter referred to as `such indebtedness'); and Whereas, Guarantors desire to secure and guarantee to Shell the prompt and full discharge by Commission Manager of all such indebtedness; now, therefore, in consideration of Shell's extension to Commission Manager of credit in an amount not less than one dollar ($1.00) and of such additional credit as Shell may see fit to extend, Guarantors jointly and severally agree as follows — First: Guarantors jointly and severally guarantee the prompt and full discharge and payment, at maturity, of any and all such indebtedness, including any and all renewals, extensions, or changes in form thereof, either in whole or in part; and whenever any such indebtedness, or any part thereof, shall become due and remain unpaid, Guarantors jointly and severally agree promptly to pay the full amount of such indebtedness to Shell. Second: The obligation of Guarantors hereunder is unlimited and subject to no condition whatsoever, . . . Third: Guarantors jointly and severally waive demand for payment and notice: of acceptance hereof, of sales to Commission Manager, of deliveries of petroleum products on consignment to Commission Manager, of the incurring of any such indebtedness by Commission Manager, of any and all renewals, extensions, or changes in form of any such indebtedness, in whole or in part, and any default of Commission Manager in the payment thereof. Shell shall be entitled to enforce the obligations of Guarantors jointly and severally hereunder without initiating any proceedings or exhausting its remedies against Commission Manager, and without abiding the event of any bankruptcy, insolvency or reorganization proceeding brought by or against Commission Manager."
The defendant filed its demurrers to the petition as follows: "1. The defendant demurs to the plaintiff's petition upon the ground that the said petition fails to set forth a cause of action against this defendant. 2. The defendant demurs to the plaintiff's petition upon the ground that nowhere in the said petition is there set forth any basis for the calculation of the defendant's alleged obligation to the plaintiff under the contract attached as `Exhibit A.' 3. The defendant demurs to the plaintiff's petition upon the ground that the `Exhibit A' manifestly shows upon its face that it was never accepted and agreed to by the plaintiff and is hence a void instrument unenforceable by law. 4. Defendant demurs to the plaintiff's petition and particularly Paragraph 2 thereof which seeks interest against the defendant upon the ground that nowhere in the petition or its Exhibit are any facts set forth upon which to predicate the recovery of interest against this defendant. 5. Defendant demurs to plaintiff's petition and `Exhibit A' thereof and particularly the reference therein to a `Certain Commission Manager's Bond' upon the ground that the same is nowhere set forth in the petition, its terms and obligations are unknown to this defendant, he having never seen the same, and this defendant is entitled to know the terms thereof since it appears to be a part by reference of `Exhibit A' of the petition." The court passed the following order: "The within and foregoing demurrers are hereby sustained and the petition is hereby dismissed with costs of court upon the plaintiff in the amount of $18.00." The plaintiff excepts to "the judgment of this court in ordering the defendant's general demurrer sustained and dismissing plaintiff's petition" and assigns error thereon.
The petition simply alleges that the defendant was indebted to the plaintiff in certain amounts as shown by his attached contract and that said amounts are "true, due, just and unpaid." The contract states that the defendant guarantees the prompt and full discharge, at maturity, of any and all indebtedness of James E. Starnes under a certain commission manager's bond. Even if we accept the plaintiff's contention that this is sufficient as against a general demurrer, the superior court's judgment of dismissal must still be affirmed.
The order of the court sustaining the "within and foregoing demurrers" necessarily sustained each of the grounds of general and special demurrers urged by the defendant. "Where a demurrer to a petition contains general and specific grounds, and the court passes an order on the demurrer, there is no presumption that the ruling was based on any particular ground, but the order will be treated as passing on the entire demurrer and on all its grounds. . . It is well settled that a ruling on demurrer by the trial judge, standing unreversed and to which there is no exception, is the law of the case, right or wrong." Cromer v. Dinkler, 82 Ga. App. 227, 231 ( 60 S.E.2d 482) and cases cited. The plaintiff has excepted only to the sustaining of the general demurrer and the dismissal of the petition. Therefore the correctness of the ruling on each of the special demurrers cannot be passed on by this court.
We are mindful of the rule stated in McSwain v. Edge, 6 Ga. App. 9, 11 ( 64 S.E. 116): "Where a court at one and the same time passes upon a demurrer containing both general and special grounds, and sustains the demurrer and dismisses the action, without giving the plaintiff opportunity to amend, the judgment will be reversed if it appears that the general demurrer was improperly sustained." However, the record in the present case does not disclose that the ruling of dismissal was made without giving the plaintiff opportunity to amend, and there is no exception to any failure to grant such opportunity. "The demurrers were heard before the lower court; no request was made, so far as the record discloses, for time to amend; and there is no exception to a refusal of opportunity to amend. The lower court should, on request, allow time to amend to meet a demurrer. A refusal to give such opportunity is subject to exception and review." Tinsley v. Maddox, 176 Ga. 471, 487 ( 168 S.E. 297). Irrespective of whether such exception may have been necessary prior to this ruling by the Supreme Court, the decision in Tinsley v. Maddox now governs the matter.
Where the delinquency pointed out by special demurrer relates to the entire cause of action and the plaintiff does not amend so as to make his petition more certain in the particulars wherein he has been delinquent, the petition may be dismissed. McSwain v. Edge, 6 Ga. App. 9, supra. Certain of the grounds of special demurrer in the present case do relate to the entire cause of action and no amendment was filed by the plaintiff to meet them. Therefore, in the absence of an exception to the sustaining of the special demurrers to the petition and also in the absence of exception to any refusal by the court of opportunity to amend so as to meet these demurrers, we cannot say that the judgment dismissing the petition was erroneous, regardless of whether the general demurrer was correctly sustained or not.
Judgment affirmed. Nichols and Bell, JJ., concur.