Opinion
28644.
DECIDED MARCH 20, 1941.
Complaint; from Waycross city court — Judge Pittman. June 26, 1940.
Herbert W. Wilson, Harry M. Wilson, for plaintiff.
E. O. Blalock, for defendants.
1. An assignment of error excepting to the disallowance of an amendment to the petition will not be considered by the appellate court where such amendment (not by the court ordered filed as part of the record) is not included in the bill of exceptions or attached thereto as a properly identified exhibit, even though it was filed with the clerk of the trial court and was specified in the bill of exceptions as a part of the record material to a clear understanding of the errors complained of.
2. A petition in which it is alleged that the defendants are indebted to the plaintiff in the sum of $404.25 "on account," as shown by an itemized statement of account attached to the petition, which itemized statement shows that the plaintiff sold to the defendants one item of merchandise for $70, another for $121.25, and another for $103, and also contains an item of account as follows: "charges for damages to equipment while consigned to you . . $110," totaling $404.25, is not subject to demurrer on the ground that it contains in the same count an action ex contractu and an action ex delicto.
DECIDED MARCH 20, 1941.
On September 2, 1939, Allied Store Utilities Company Inc., a corporation, instituted suit against Harry Bennett, Benjamin Bennett, Jacob Bennett, and Louis Bennett, trading as Bennett Brothers, alleging, that the defendants were indebted to it in the sum of $404.25 upon "an open account;" that the plaintiff had theretofore, "on or about the _______ day of _______ 19__," sold and delivered to the defendants, at their request, certain merchandise amounting to $294.25; that after allowing all credits the defendants were due to the plaintiff the sum first alleged; and that the defendants had failed to pay such indebtedness. Attached as a part of the petition appeared the following statement of account: "Sold to ______, Waycross, Georgia, 319 Lott Street, Bennett Bros. 7-18-38 Allied Store Utilities Co. 1 No. 33 Steiner Chopper, Serial No. 36-546, $70.00. 1 No. 711 Steiner Scale, Serial No. 37-7600, $121.25. 1 No. 720 Steiner Scale, Serial No. 37-7627, $103.00. Charges for damages to equipment while consigned to you, $110.00. $404.25." The last figures were the total. On October 19, 1939, the defendants demurred to the petition on the ground that no cause of action was alleged against them, and specially on the ground that there was a misjoinder of causes, in that the plaintiff was proceeding in the same petition and in the same count on an action ex contractu and an action ex delicto, and that the petition was for such reason duplicitous. The defendants demurred to paragraph 2 of the petition wherein it was alleged that the defendants were indebted to the plaintiff in the sum of $404.25 on an open account, as hereinafter set forth, on the ground that no itemized statement of the account was set out in this paragraph or elsewhere in the petition. Attached to the petition was an itemized statement as above indicated. The defendants also demurred to paragraph 3 of the petition, because the date of the account alleged was not given.
On June 26, 1940, the judge sustained the demurrer and dismissed the action, by an order as follows: "The within demurrer coming on for hearing, and the plaintiff having been given opportunity to amend to meet same, and having failed to do so, it is ordered that said demurrer be and the same is hereby sustained, and said petition dismissed." On June 26, 1940, the plaintiff proffered an amendment to the petition, which was disallowed by the court on objection of the defendants. This instrument was filed by the clerk of the trial court, and an entry of filing was indorsed thereon, although there was no order or direction by the judge that the same be filed. On October 19, 1939, subject to their demurrer, the defendants filed their plea and answer in which they denied the indebtedness sued on, and by way of cross-action alleged that the plaintiff was indebted to them for commissions earned by them in selling for the plaintiff the merchandise described in the statement attached to the petition, and that they were due to the plaintiff $70 for one No. 33 Steiner chopper, which sum they had refused to pay, by reason of the fact that the plaintiff was indebted to them in a larger sum. At the trial on June 26, 1940, on motion of the defendants the judge directed a verdict of $304.17 for them on the cross action. On July 12, 1940, the plaintiff sued out a bill of exceptions in which it assigned error on the disallowance of the amendment to its petition, and on the dismissal of its action on demurrer. After reciting that the case proceeded to trial before a jury on the defendant's cross-action, and after "evidence was introduced by the defendants sustaining their cross-bill and defendants rested their case," the bill of exceptions recites that "upon motion of defendants' counsel the court directed a verdict in favor of the defendants in the sum of $304.17, to which ruling of the court directing a verdict in favor of the defendants and the judgment based thereupon plaintiff in error excepted, now excepts, and assigns the same as error upon the ground that it was contrary to law." The defendants filed in this court a motion to dismiss certain portions of the bill of exceptions, namely the assignments of error relative to the disallowance of the plaintiff's amendment, and to the direction of the verdict for the defendants.
The proffered amendment to the petition, which was disallowed, was not ordered filed by the court as a part of the record, was not incorporated in the bill of exceptions or attached thereto as an exhibit and properly identified by the court, but was specified in the bill of exceptions as a part of the record material to an understanding of the errors complained of. "Where an amendment to a pleading is tendered and disallowed, and there is no order directing that it be filed and made a part of the record, . . it is not part of the record, and can not be specified as such in the bill of exceptions." Sutherland v. Donovan, 34 Ga. App. 643 ( 130 S.E. 688); Readdick v. Forsythe, 52 Ga. App. 54 (2) ( 182 S.E. 407). The fact that the proffered amendment was filed with the clerk of the trial court and by him marked "filed" does not render it a part of the record. Goldberg v. Berger, 52 Ga. App. 41 ( 182 S.E. 71); Shaeffer v. Central of Georgia Railway Co., 6 Ga. App. 282 ( 64 S.E. 1107); Branan v. Baxter, 122 Ga. 222 ( 50 S.E. 45). There having been no previous order of the judge allowing the amendment, or order that it be filed subject to objection, the marking of the paper "filed" by the clerk was a mere nullity. This court can not consider the assignment of error on the disallowance of the amendment, where the amendment is not included in the bill of exceptions or attached thereto as a properly identified exhibit, but is merely specified as a part of the record, of which it never became a part, and is sent by the clerk to this court with the record. Clarke v. Calhoun National Bank, 53 Ga. App. 691 ( 187 S.E. 304).
It appeared from the petition and the attached exhibit that the plaintiff sold and delivered to the defendants certain items of merchandise, for which the defendants had not paid, and for which they were indebted to the plaintiff $294.25; and that the defendants were also indebted to the plaintiff, as "charges for damages to equipment while consigned to defendants," in the sum of $110. It was alleged that this indebtedness was past due. The petition was not subject to general demurrer.
The special demurrer to paragraph 3 of the petition, on the ground that the alleged account was not dated, was without merit. It appears from the statement of account, which was a part of the petition, that the plaintiff sold to the defendants the articles referred to on "7-18-38." The ground of special demurrer, that there was no itemized statement of account set out, was likewise not meritorious. The account was itemized. The defendants further specially demurred on the ground that from the allegations of paragraph 2 of the petition, together with the itemized statement attached referred to, it appeared that paragraph 2 was "duplicitous, in that it joins an action ex contractu and an action ex delicto in one action." It was alleged in paragraph 2 that the defendants were indebted to the plaintiff in the sum of $404.25 "on an open account as hereinafter set forth," and in paragraph 3 it was alleged that the plaintiff sold and delivered to the defendants at their request certain merchandise amounting to $294.25. It is contended that the language in the statement attached to the petition, "charges for damages to equipment while consigned to you . . $110," refers to damages ex delicto, and that the other items of such statement refer to sums alleged to be due ex contractu. It was alleged that the defendants were due the plaintiff $404.25 "on an open account." This item of $110, which it is contended by the defendants represented an indebtedness ex delicto, was included by the plaintiff within the $404.25 which was alleged to be due "on open account." This was equipment to an allegation that all the items, including the $110 item, were due on open account, and therefore were due ex contractu. In 1 C. J. S. 574 it is stated that "an open account is one in which some item of contract is not settled by the parties." It appeared from the statement attached to the petition that this last item was a "charge" for damages to equipment while the equipment was "consigned" to the defendants. A consignment, as respects the equipment, implies that it was a bailment, and that the defendant was the bailee. This implies a contract of bailment. Damages to equipment while consigned as a bailment are not necessarily damages ex delicto. They could arise ex contractu out of a breach by the defendant of the contract of bailment. Chappell v. Western Railway of Alabama, 8 Ga. App. 787 ( 70 S.E. 208). An allegation that this item was a charge for damage while consigned, and was due on open account, was an allegation that the alleged indebtedness arose ex contractu. Furthermore, the item sued for was not for damages to the equipment, but it was for "charges" for damages to the equipment while under consignment. This implies that some estimation or ascertainment of the damage had been determined or liquidated before the suit. An obligation to pay such charge is one ex contractu. Since the obligation represented in this item, viz., charges for damage to equipment, was designated by the plaintiff as arising on "open account," this was an allegation that the obligation arose ex contractu. This item was not specifically attacked by special demurrer as insufficient to show an obligation ex contractu. It was accepted at its face value by the demurrant.
The petition was not subject to demurrer on the ground of a misjoinder of ex delicto and ex contractu causes of action. It set out a cause of action, and was good against general demurrer and all the special demurrers. The court having erred in sustaining the demurrer to the petition and dismissing the action, the subsequent proceedings resulting in a verdict and judgment for the defendants on the cross-action were nugatory.
Judgment reversed. Felton, J., concurs. Sutton, J., dissents.