Brooks v. West Lumber Co., 34645
| Decision Date | 09 June 1953 |
| Docket Number | No. 34645,No. 2,34645,2 |
| Citation | 88 Ga.App. 510,77 S.E.2d 43 |
| Parties | BROOKS et al. v. WEST LUMBER CO |
| Court | Georgia Court of Appeals |
SYLLABUS BY THE COURT
1. Where the answer of the defendant, containing a paragraph which if established by the evidence would constitute an absolute defense to the action, is demurred to by the plaintiff and the demurrer overruled without exception, such judgment overruling the demurrer constitutes such paragraph of the answer a defense to the action under the law of the case. This is true even though the matter thus set up in the answer may not constitute a legal defense and the judgment of the trial court overruling the demurrer thereto may be error.
2. Separate and inconsistent defenses may be filed, and, where this is done, a special demurrer directed to one specific and separate defense must be decided in its relation to that defense alone, regardless of matter contained in other defenses set out in the answer.
3. Copies of written instruments which do not constitute the bases of causes of action or the relief prayed need not be attached as exhibits to the pleadings.
The defendant in error, West Lumber Company, sought to foreclose a lien in the Civil Court of Fulton County against property owned by the defendants, Alice A. Brooks and E. Rudolph Brooks, for the purchase price of materials bought from it by the contractor, A. T. Wheeless, under a contract to repair the defendants' premises. The plaintiff was not paid for the materials, and filed its claim of lien against the defendants within the statutory period. The defendants paid the contractor in full and received a receipt from him, but did not receive an affidavit that all labor and materials had been paid for. The plaintiff, which had allowed the contractor to purchase from it on open account for a period of years, obtained from Wheeless a note for the total amount of his indebtedness to it, and thereafter obtained a default judgment on the note for the amount therein stated, prior to filing this action. At the close of the evidence the court directed a verdict in favor of the plaintiff. They filed a motion for new trial, which was later amended by adding two special grounds, and was denied. The exceptions are to the denial of this motion and to certain exceptions preserved pendente lite to the pleadings.
Smith, Kilpatrick, Cody, Rogers & McClatchey, A. G. Cleveland, Jr., George B. Haley, Jr., Atlanta, for plaintiffs in error.
Johnson, Hatcher & Meyerson, Atlanta, for defendant in error.
1. It is contended by the defendants that the direction of a verdict against them was error because it had become the law of the case that one of their defenses, which was supported by uncontradicted evidence, demanded a verdict in their favor, in that a demurrer to that defense had been overruled and no exceptions preserved to such ruling. In Story v. First National Bank of Thomson, 34 Ga.App. 27, 128 S.E. 12, it is held:
Paragraph 15 of the answer contained a special defense as follows: 'As a further and alternative defense, defendants allege that the plaintiff has not heretofore obtained judgment against the contractor, A. T. Wheeless, for the price of the materials as to which the plaintiff's lien is asserted and further show that the judgment referred to in paragraph 6 of the plaintiff's petition, as amended, is not a judgment for the price of such materials but is a judgment on the note executed under said contract of April 10, 1951, as alleged above.' A demurrer was interposed to this defense on the ground that the allegations 'are irrelevant and immaterial in that an express judgment for the price of materials is not necessary, but a judgment which includes the purchase price for the materials which have gone into the property of the defendants is sufficient to authorize a lien upon defendants' property.' The overruling of this demurrer established as the law of the case that this defense was material, in that an express judgment for the price of materials must be shown in order to comply with the provisions of Code (Ann.Supp.) § 67-2002(3), rather than a judgment on a note which includes the purchase price of the materials. The proof demanding a finding that the materialman's judgment against the contractor, which was a condition precedent to the foreclosure of his lien, was not such an express judgment for the price of the materials--a finding was demanded, under the law of this case, that the plaintiff had failed to comply with the statutory conditions relative to foreclosure, and was therefore not entitled to a judgment in its favor. The trial court therefore erred in denying the motion for new trial, which specifically urged this defense.
2. A defendant is entitled to file as many separate defenses as he desires, regardless of whether such defenses are inconsistent or contradictory. Code, § 81-310; Associated Mutuals v. Pope Lumber Co., 200 Ga. 487(1), 37 S.E.2d 393. It follows, therefore, that a 'further and alternative defense' set up by the defendants in paragraph 13 of their answer neither helped nor hindered the separate defense contained in paragraph 15 above referred to. For this reason the demurrer directed to the defense contained in paragraph 15 pertained to this defense alone, and the judgment overruling this demurrer did not, as contended by the defendant in error, have any relation to paragraph 13 so as to prevent the defense set out in paragraph 15 from becoming the law of the case.
3. Nor can it be contended that the judgment of the trial court in overruling a special demurrer to paragraph 6 of the amended petition is contradictory to what is here held. Although paragraph 6 alleged that the plaintiff had obtained a judgment against the contractor for $3,056.69, 'which principal amount included the amount of $496.56 for materials sold and used in the improvement of defendants' property,' the demurrer was based solely on the ground that no copies of the pleadings or judgment in that case were attached to the...
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State Farm Mut. Auto. Ins. Co. v. Burden
...as many separate defenses as he desires, regardless of whether such defenses are inconsistent or contradictory.' Brooks v. West Lumber Co., 88 Ga.App. 510, 512, 77 S.E.2d 43, 45. See also Milam v. Terrell, 214 Ga. 199, 104 S.E.2d The evidence did not demand an answer of yes to question No. ......