Opinion
32453.
DECIDED MAY 18, 1949.
Complaint; from Fulton Civil Court — Appellate Division. February 8, 1949.
William A. Thomas, for plaintiffs.
Gambrell, Harlan Barwick, James C. Hill, for defendant.
1. In a justice's court the suitor is not required to allege his cause of action with the same degree of strictness and formality that is necessary in a court of record, but where, as here, the petition undertakes to set forth an entire ground of complaint, which complaint does not show a cause of action, it is proper to sustain a general demurrer and dismiss the action.
2. When a deed is executed pursuant to a preliminary contract for the sale of land, any provisions in the sales contract are abandoned and of no effect when the deed executed pursuant to the contract makes no mention of them. Therefore, a petition seeking to set out such provisions of the preliminary contract, which are not expressed in the deed executed in pursuance of the sales contract, sets out on cause of action and the petition will be dismissed on general demurrer.
3. Where a petition is complete in form and substance, but shows on its face that no cause of action is set out as a matter of law, it is not permissible to add by amendment a new and different cause of action in another count or counts, or otherwise, over objection.
4. It is permissible under the law of procedure to embrace in a petition as many different counts as may be desired. But it must appear that the counts set forth causes of actions similar in nature, that is, all ex delicto or all ex contractu. And each count must set forth a perfect cause of action within itself, else such a count in failing to do so will be subject to be stricken on general demurrer and, in such event, the plaintiff may proceed on the remaining count or counts not so defective. It is also true that in a suit to recover damages the petition may embrace two or more separate counts setting forth different ways of the manner in which the injury or damage resulted, in order to meet anticipated variations in the proof which may be adduced at the trial. In such an event, if one of the counts be stricken because no cause of action is stated therein, the striking of such count will not bar prosecution on another good count or counts in the petition.
5. Where a petition complete in form and substances sets forth no cause of action as a matter of law, it cannot be amended, over objections properly made, setting up a new and distinct cause of action in a different count. This is true for the reason that there is nothing by which to amend. It is also true that, where a petition as originally filed is complete in form and substance, but sets up no cause of action as a matter of law, and an amendment is offered in another count setting up a new and distinct cause of action, and the allowance of such amendment is not objected to, it is error to sustain a general demurrer and dismiss the petition as amended.
6. In the instant case, (a) the court did not err in refusing to pass upon the demurrer of the plaintiffs to the answer; and (b) the court did not err in refusing an amendment to the petition after the petition had been dismissed on general demurrer.
DECIDED MAY 18, 1949.
The plaintiffs sued Mrs. Lorene S. Young. This case involves procedure as applied to pleadings, which involves amendments to the original petition as filed, also as applied to adding additional counts, and an answer of denial and a cross-action. It also involves demurrers, both general and special to the original petition, to the petition as amended, and also objections to amendments. It also involves demurrers to the answer and dismissal of the original petition on demurrer, without passing upon the demurrers to the answer and cross-bill. Since such pleadings involve perplexing questions and oftentimes vexing ones, we deem it best to set out the pleadings as well as we can in the chronological order filed, and the facts as they appear from such pleadings. The pleadings thus appear:
(a) The petition was filed in the Civil Court of Fulton County. A jury was demanded by the plaintiffs. Materially, this petition alleged that on December 6, 1945, the plaintiffs entered into a written contract with the defendant for the purchase of a described tract of land in Colquitt County, embracing 78.5 acres. It was alleged that the defendant was obligated to pay for one-half of a line fence between this tract and tract number 2, which was adjacent to the one sold to the plaintiffs. It was alleged in the contract of sale that the defendant obligated herself to pay for one-half of the expenses of erecting a line fence between these two tracts, which the plaintiffs were to furnish the labor and material to erect. It was also alleged that, pursuant to this contract, a deed was executed by the defendant to the plaintiffs and that they went into possession of the tract purchased by them; that the line fence was erected by them in accordance with the agreement, and that one-half of the same amounted to $156.25, for which this suit was instituted; and that after the fence was erected the plaintiffs demanded of the defendant her portion of the expenses of erecting the line fence, but she refused to pay the same. It was alleged that the defendant's husband acted as her agent throughout the transaction (this is not denied). The petition also alleged that the husband of the defendant thereafter demanded of the plaintiffs the difference between the amount sued for, $156.25, and $295 (which last sum the defendant claimed by reason of a tobacco allotment of two acres, as will appear hereinafter), which demand of the defendant was fraudulent and made for the purpose of avoiding the just claim of the plaintiffs, for which they sued in this action. It was further alleged that this demand on the part of the defendant was made in such bad faith and fraud as to amount to "stubborn litigiousness," and therefore the plaintiffs were entitled to recover of the defendant $100 for attorney's fees in addition to the principal amount sued for and also to recover an additional $35, the expenses of having to go to Colquitt County, Georgia, to secure evidence regarding this fraudulent demand. These two amounts, added to the principal sum, made the amount sought to be recovered $305.82. There was attached to this petition a real-estate broker's contract, which was signed by the plaintiffs but not by the defendant. This broker's contract, briefly, provided that the plaintiffs agreed to purchase the tract of land of 78.5 acres with the following provisos: That the defendant was to pay the taxes for 1945; that a two-acre tobacco allotment was to go to the plaintiffs with the tract of land sold to them; and that the defendant was to pay for "half of the line fence between this tract and tract No. 2 above mentioned." This broker's contract further stipulated that the purchase-price for the tract of land purchased by the plaintiffs was to be $4716.80. (This contract does not appear to have been signed by the defendant, but it is alleged to be the basis of the sale of the land, including the terms. The terms of this contract are involved in both the pleadings of the plaintiff and the defendant).
(b) The defendant filed demurrers, both general and special, the general demurrer being that the petition set out no cause of action, and the special, insofar as material, that a copy of the purchase contract is not attached; and also that a copy of the deed is not attached.
(c) Subject to demurrer, the defendant filed her answer denying the material allegations of liability of the petition, and further alleged: that the purchase contract "relied on by the plaintiffs shows on its face that the parties agreed to a two-acre tobacco allotment for the tract purchased by the plaintiffs"; and that, following the sale of the said tracts of land by the defendant to the plaintiffs, the plaintiffs refused to secure an application for reconstitution of the 1945 tobacco allotment based on the written agreement; and that, by the refusal of the plaintiffs to sign this application, the County Committee of Colquitt County refused to permit the defendant to retain the tobacco allotment on the two tracts; that after she sold the tract of land to the plaintiffs she sold the number two tract to one John B. Clayton with the understanding that he was to have, with the tract which he, Clayton, purchased, the remainder of the tobacco allotment; that, because of the refusal of the plaintiffs to sign their applications for the tobacco allotment which went to them, the purchaser Clayton could not obtain from the committee the tobacco allotment which went with the portion which he purchased, that is, tract No. 2; and that she was thus forced to pay to Clayton as a reduction in the purchase-price of tract No. 2 which he purchased, the sum of $500. There is attached to this answer a copy of a contract between the defendant, Lorene S. Young, and the purchaser of the second tract, Clayton, wherein they settle this issue between them with reference to the damage which Clayton had suffered by reason of the failure of the plaintiffs to comply with their contract by refusing to make application for the tobacco allotment which went to them as a part of the consideration for the purchase-price of the tract sold by the defendant to the plaintiffs. There is set out in the answer that, by reason of conduct of the plaintiffs in refusing to comply with their written contract for the purchase of land, they had thus damaged the defendant in the sum of $295, and they sought in their answer in the nature of a cross-action to recover the difference between what the defendant owed as her one-half of the cost of erecting the line fence and what the plaintiffs owed her by their refusal to comply with their contract with reference to the tobacco allotment. The amount set out in this cross-action is alleged to be $134.51.
(d) The plaintiffs demurred specially to certain paragraphs of the defendant's answer.
(e) The plaintiffs thereafter filed another amendment, in which was attached in response to the demurrer the deed from the defendant to the plaintiffs, executed December 31, 1945, and recorded January 5, 1946.
(f) A copy of the deed attached is a warranty deed, conveying the tract of land specified in the written sales agreement attached to the original petition. It shows that the purchase-price was $4710. The deed makes no mention of the line fence nor the tobacco allotment mentioned in the written contract of sale, which is attached to the original petition and bears date of December 6, 1945.
(g) The plaintiffs thereafter amended their petition by adding a second count. The second paragraph of this count reads: "That, pursuant to an oral contract and agreement had between plaintiffs and defendant, Mrs. Lorene S. Young during 1946, the exact date of which plaintiffs can not at this writing designate and set out, plaintiffs did furnish the labor and material in the construction of a "line" fence between tract number three [one] which plaintiffs purchased, theretofore from defendant and tract number 2 in Colquitt County, Georgia." It was further alleged that the defendant agreed to pay for one-half of this line fence, and that the plaintiffs built it under the conditions alleged in the original petition. The other allegations of the amendments designated as count 2 are similar and many of them identical with the allegations of count 1 as to the erection of said fence and the amounts due to the plaintiffs therefor. This amendment contained in count 2 was allowed by the trial judge in the following order, omitting the formal parts: "The within amendment read, considered, allowed and ordered filed subject to written objection and demurrer." (Italics ours.)
(h) After the filing of this amendment, the defendant filed a demurrer, the material portions of which are: "Comes now the defendant and, after the amendments of the plaintiffs to their petition tendered on this date, renews her general demurrer heretofore filed and further moves that the court not allow the said amendments on the following grounds: "1. The petition as amended fails to set forth a cause of action against the defendant. 2. The petition as amended shows on its face that the plaintiffs have no cause of action against this defendant. 3. The amendments tendered attempt to set up an oral contract varying the terms of a valid written deed. 4. The amendments tendered set forth no cause of action against this defendant, in that they seek to set up an oral contract and show on their face that such a contract was, if proved as alleged, without any valid consideration. 5. The tendered amendments to the plaintiffs' petition attempt to set out a new cause of action and should not be allowed."
(i) On the pleadings the trial court passed the following order: "The general demurrer of the defendant interposed on April 5, 1948, to the plaintiff's petition, came on regularly before me for hearing, and pending a decision on that demurrer the plaintiff, on November 29, 1948, tendered two amendments which were allowed subject to objection, and on the same day the defendant renewed her demurrer to the petition as amended and objected to the allowance of the amendments. Upon consideration, the court is of the opinion that the original suit declared upon a contract to purchase real estate (see Exhibit A to amendment filed April 1, 1948), which was merged into the deed of December 31, 1945 (see Exhibit A to amendment to Count One, filed November 29, 1948), and the deed not containing any provision about the contract to build the fence, the court is of the opinion that the original petition, as amended, does not set forth a cause of action, and that the second amendment of November 29, 1948, which seeks to add an additional count based upon an alleged oral contract to build the same fence, should be stricken because it is inconsistent and seeks to set up a new cause of action, and for the further reason that there is nothing in the original petition to amend by. Whereupon, it is considered, ordered and adjudged by the court that the defendant's general demurrer, as renewed, be and the same is hereby sustained, and the amendment to the petition seeking to add a count to be numbered 2 be and the same is hereby stricken and the petition as amended be and the same is hereby dismissed, with $ ____ cost against the plaintiffs. This the 2nd day of December, 1948. [Signed] J. Wilson Parker, Judge, Civil Court of Fulton County."
(j) After the trial court had signed the above-stated order dismissing the case, the plaintiffs filed a third amendment designated as count 3. The court on this amendment entered the following order: "The within amendment was tendered to me on this date after the order dismissing the case on general demurrer, and it is therefore not allowed."
(k) To the judgment of the trial court the plaintiffs in due course filed an appeal to the Appellate Division of the Civil Court of Fulton County. That division affirmed the judgment dismissing the petition on demurrer.
1. The plaintiffs in error contend that since a suit might be brought in the Civil Court of Fulton County by a summons, as may be done in a justice of the peace court, the court erred in sustaining the demurrer for this reason. Even in a justice's court a plaintiff is required to set up the facts relied upon with some certainty. See Vaughan v. McDaniel, 73 Ga. 97; Peeples v. Strickland, 101 Ga. 829, 831 ( 29 S.E. 22). The plaintiff is thus required to set forth his cause of action "with some degree of certainty." The plaintiffs in the instant original petition undertook to set out, and we think they did, the entire ground of their complaint. In doing so they showed affirmatively that they had no cause of action. This being true, the petition, even though it could have been brought in a less full form, being brought, in full form, was subject to be dismissed on general demurrer. See Bush v. Addison, 40 Ga. App. 799 (1) ( 151 S.E. 526), and citations therein. In headnote 1 of that opinion this court held: "While the law does not require that a suitor in a justice's court shall set forth his cause of action with the same strictness and formality that may be necessary in a court of record, yet where the plaintiff in a justice's court attaches to the summons a petition in which he undertakes to set forth his entire grounds of complaint, and the statement therein fails to show a cause of action, it is not error for the magistrate to sustain a general demurrer and dismiss the petition." See also Grahn Construction Co. v. Pridgen, 49 Ga. App. 720, 721 ( 176 S.E. 656).
2. The allegations of the original petition affirmatively show the action to be one for the breach of an executory contract to buy and sell realty. It was in writing. The allegations show that the deed was executed pursuant to this contract. Therefore any actionable terms of the contract were merged into the written deed by operation of law. It thus follows that, since no provisions of the deed were breached, the petition set out no cause of action. The Supreme Court in Keiley v. Citizen Savings Bank c. Co., 173 Ga. 11 (1) ( 159 S.E. 527), said: "Where in a contract for the sale of land the parties executed preliminary sales contract and subsequently reduced the contract to a finality evidenced by deed, the terms of the preliminary contract were merged into the deed, and terms or conditions or recitals contained in the preliminary sales contract which are not included in the deed will be considered as eliminated, abandoned, or discarded. In such case, where it is not shown that the purchaser could did not observe such omission, he will no be permitted to treat the contract as valid and binding, and at the same time recover damages because of the fact that the statements contained in the sales contract, but not in the deed, were untrue. The court in this case properly sustained a demurrer to that portion of the answer seeking a recovery from the vendor, based upon the allegation such as just stated." That case seems to be on all fours with the original petition filed in the instant case. To the same effect see Augusta Land Co. v. Augusta Ry. c. Co. 140 Ga. 519 ( 79 S.E. 138); Taylor v. Board of Trustees, etc., 185 Ga. 61 ( 194 S.E. 169); Loftis v. Clay, 164 Ga. 845 ( 139 S.E. 668); Ingram v. Smith, 62 Ga. App. 335 (3) ( 7 S.E.2d 922); Smith v. White, 75 Ga. App. 303 ( 48 S.E.2d 275). The decisions, including the ones from which we quoted, with the citations in them, are sufficient to show that the original petition, based upon the breach of the sales contract and not upon a breach of the provisions of the deed, set out no cause of action. There are many other decisions to the same effect.
3. Accordingly, since the original petition stated no cause of action, there was nothing by which to amend, and the court did not err in striking the amendment to the petition, where the plaintiffs sought to recover one-half of the cost of erecting the line fence, based upon what was alleged to be an oral contract after the deed was executed and a ratification by the defendant in the erection of the line fence after the deed was executed. This is a correct procedure under all of the appellate decisions so far as we have been able to ascertain. When the plaintiffs attempted to do so, they set out a new and distinct cause of action. This is true since the petition as originally brought was for the breach of the provisions of the original executory contract of sale, which was merged by operation of law into the deed. It follows that the amendment in the second count set up a new and distinct cause of action. This principle is discussed fully in the case of Ellison v. Georgia R. Co., 87 Ga. 691 ( 13 S.E. 809). The petition in the instant case did not seek to enlarge upon the substance alleged in the original petition, but the amendment sought to set out an entirely new substance and therefore an entirely new cause of action. In the Ellison case, page 708, the court said: "The contents of the amendment as compared with what is already in the declaration may tend to show, either that the plaintiff is endeavoring to follow up a cause of action, or supposed cause, which he had in view when the declaration was prepared and filed, or, that having since discovered that no such cause exists or is maintainable, he has concluded to shift his ground and bring in surreptitiously a new and distinct cause of action in violation of one of the limitations upon his right to amend. . . And to render the amendment offered admissible, it must contain not merely the quantity and general quality of matter requisite to fill out the declaration, but its matter must be the residue of the identical cause of action of which a part is already described in the declaration." Then again at page 711 of that opinion the court said: "If the original design of the pleader, carried out in full, would embrace no cause of action, the declaration is not amendable." It will be observed that the original design of the pleader was alleged in full and it shows that no cause of action was set out. It was, therefore, not permissable under the law for the plaintiffs to set out a new and distinct cause of action as proposed by his amendment, adding count 2 as set out above. See, in this connection, Simmons v. Beatty, 57 Ga. App. 350, 354 ( 195 S.E. 289), and McKay v. Atlanta Birmingham c. R. Co., 60 Ga. App. 212 ( 3 S.E.2d 456), and citations therein. Those cases from this court discuss interestingly the principle of law involved in the discussion before us and as laid down in the Ellison case, supra, and as codified from the Ellison case in the Code, § 81-1301. See also, in this connection, Shepherd v. Southern Pine Co., 118 Ga. 292 ( 45 S.E. 220). The legal rule is clear that a plaintiff may not introduce an entirely new cause of action by an amendment even though the amendment be designated as a new count. In this connection, see Charleston Western Carolina Ry. Co. v. Lyons, 5 Ga. App. 668 ( 63 S.E. 862); Latine v. Clements, 3 Ga. 426; Maxwell v. Harrison, 8 Ga. 61 (52 Am. D. 385); Andrews v. Pogue, 62 Ga. 176; Jones v. Robinson, 172 Ga. 746 ( 158 S.E. 752); Dundee Woolen Mills v. Edison, 17 Ga. App. 245 ( 86 S.E. 414).
4. Counsel for the plaintiffs argues at length the principle that a petition between the same parties may contain as many counts as there are cause of action of a similar nature in favor of a plaintiff against a defendant — that is to say, causes of action ex contractu and ex delicto. There is no dispute but that this contention is a clear principle of the law of procedure. See, in this connection, Cooper v. Robert Portner Brewing Co., 112 Ga. 894 ( 38 S.E. 91), wherein the court said: "While it is permissible for the plaintiff to embrace in his petition as many different counts as he may see proper, provided all of the counts set forth causes of action of similar nature, that is, all ex delicto or all ex contractu, each count must set forth a perfect cause of action." In this connection it is enthusiastically argued by counsel for the plaintiffs that a petition may embrace two or more separate counts stating different accounts of the manner in which that cause of action may be proven. This principle of the law of procedure is permissible so as to meet any anticipated variation in the proof which may be submitted at the trial. In such a petition the striking of one of the counts on the ground that no cause of action is stated therein will not be a bar to a prosecution upon another count in the petition. In this connection, see Gainesville Dahlonega Electric Ry. Co. v. Austin, 127 Ga. 120 ( 56 S.E. 254). See also Hay v. Collins 118 Ga. 243 (2) ( 44 S.E. 1002); Livingston v. Schneer's Atlanta Inc., 61 Ga. App. 637 ( 7 S.E.2d 190). Counsel for the plaintiff in citing the Livingston case, supra, quotes a portion of the opinion of the court to this effect: "The court properly sustained the demurrer to counts 1 and 2 of the petition, but erred in sustaining the demurrer to count 3." Counsel goes on then to state that count 3 was added by amendment and was not setting up a new cause of action. The opinion in that case does not show that count 3 was added by amendment. In the very beginning of the opinion the court states: "Livingston brought an action in 3 counts . . " We construe this to mean that the petition when filed contained 3 counts. It is not in the opinion to the contrary. Even if it should be, as counsel contends, that count 3 was added by amendment, it nowhere appears in that opinion, as it does in the instant case, that objection was made to the amendment setting up the third count for the reason that it set for a new and distinct cause of action inconsistent with the allegations of counts 1 and 2. It is thus easily discerned that the cases to which references are made by counsel for the plaintiffs show no legal reason for reversing the judgment in the instant case.
5. Much has been said, both in the briefs and in the oral arguments of counsel for both sides, in regard to the proper construction of the ruling in Laslie v. Gragg Lumber Co., 184 Ga. 794 ( 193 S.E. 763, 113 A.L.R. 932); counsel for the plaintiffs contending that that case is authority to the effect that the judgment of the court in the instant case should be reversed, and counsel for the defendant taking the contrary position. In that case Laslie, a resident of Georgia, sued Gragg Lumber Company, a partnership, the members of which resided in Georgia, seeking to recover the value of the manufactured product, timber, which the defendants had cut from lands of the plaintiff, which lands were situated in the State of Florida, and for general relief to prevent further cutting of the timber of the plaintiff by the defendants. The defendants then filed demurrers both general and special. Thereupon, to meet certain statements of the special demurrer, the plaintiff filed amendments. Thereafter, the plaintiff filed a final amendment. In substance in this last amendment, the plaintiff renounced his allegations of trespass upon which he originally relied and alleged in the amendment that he was basing his cause of action upon conversion of the timber which had been severed from the land. There was no objection on the part of the plaintiff to the allowance of this amendment, which changed the cause of action from one of trespass to one of conversion. The trial court sustained the general demurrer, not passing on the special demurrer, and dismissed the petition. The case was brought to the Supreme Court by the plaintiff, assigning error on the judgment of the court in sustaining the general demurrer and dismissing the petition. The Supreme Court, in a divided opinion, in passing upon the case, stated that the original petition set out no cause of action for the reason that the plaintiff in a court of equity can not maintain his suit to enjoin a trespass on land situated in the State of Florida, although the defendants reside in the State of Georgia. The court, in an unanimous opinion, further held that the plaintiff may sue the defendants residing in Georgia for damages for conversion (instead of trespass), although the property converted be timber unlawfully cut from lands in Florida. The Supreme Court held that the trial court was correct in dismissing the petition on demurrer to the suit as originally brought, but that, since there was no objection on the part of the defendants to the amendment changing the action from one of trespass to one of conversion, although a new and distinct cause of action was set up in such a manner, the court erred in sustaining the renewed demurrer to the petition as amended and in dismissing the case. So it is that, where a petition sets out no cause of action in substance as originally filed, but later a new and distinct cause of action is set up by amendment without objection at the proper time, the case should not be dismissed on general demurrer but may be prosecuted by the plaintiff on such an amendment allowed without objection. In the instant case, if the defendants had not objected to the allowance of the amendment relying upon an oral contract by amendment — which was a new and distinct cause of action — the instant case might have appeared in a different legal light. In the instant case, the original petition, as did the original petition in Laslie v. Gragg Lumber Co., supra, set out no cause of action. This being so, an amendment setting up a new and distinct cause of action is not permissible, provided proper objections are duly made to the allowance of the amendment. In the Laslie case no proper objection was made to the amendment and it withstood. In the instant case the amendment setting up a new and distinct cause of action was allowed subject to objections and demurrer, as the record reveals. The defendant did two things: registered objections to the allowance of the amendment, and renewed the demurrers both general and special. The trial court's judgment so states. The court did not err in sustaining the objections to the amendment adding a new and distinct cause of action. There is no merit in this contention of the plaintiff.
6. There are two other contentions of the plaintiffs which we will discuss together. The first complains of the court's refusal to pass upon the demurrers of the plaintiffs to the answer; and the second, of the refusal to allow the third amendment of the plaintiffs, which amendment was offered after the court had signed an order dismissing the case. Neither of these contentions is tenable and needs, we think, any further elaboration and citation of authority.
The appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial judge and dismissing the petition on general demurrer.
Judgment affirmed. MacIntyre, P. J., and Townsend, J. concur.