Darlington Corp. v. Evans

• Decision Date: 30 April 1953
• Docket Number: No. 34560,No. 2,34560,2
• Parties: DARLINGTON CORP. v. EVANS
• Court: Georgia Court of Appeals

Page 72

76 S.E.2d 72

88 Ga.App. 84

DARLINGTON CORP. v. EVANS.

No. 34560.

Court of Appeals of Georgia, Division No. 2.

April 30, 1953.

Syllabus by the Court.

The petition as amended, seeking only the recovery of special damages from the defendant for an alleged breach by it of a contract between the plaintiff and the defendant, and none of the items of special damage sought being properly recoverable under the law and the facts alleged, the amended petition failed to allege a cause of action and should have been dismissed.

Floyd L. Evans brought suit against The Darlington Corporation in the Civil Court of Fulton County to recover $1,148, which the plaintiff alleged the defendant was due him by virtue of its breach of a contract of employment between himself and the defendant. The petition as amended alleged as follows: The defendant corporation operates the Darlington Apartments on Peachtree Road in said county, same being a large apartment building wherein numerous tenants of the defendant reside. L. A. Sifford, Jr., on February 28, 1952, and at all times herein mentioned, was the defendant's agent and engaged in the management and operation of said apartment building for the defendant. On said date, the defendant, through said agent and manager, employed the plaintiff to operate the boiler in said apartment building and to pay him therefor $200 monthly and also to furnish to him and his family an apartment in said building. It was agreed that the plaintiff was to begin performance of the duties of his employment on March 10, 1952, and said job was to be permanent. At the time the said Sifford employed the plaintiff for the defendant, he desired that the plaintiff go to work immediately, and the plaintiff explained to him that he owned a farm near Monroe, Georgia, and some cows and other personalty that he would have to dispose of and make arrangements about, and it was agreed that the plaintiff would actually begin work on March 10, 1952, but that he could move into the apartment at any time that suited his convenience. The plaintiff also informed the defendant's sais manager that he was a painter by trade and had two houses under contract to be painted. The said Sifford thereupon told the plaintiff to go ahead and make the necessary arrangements about his farm and cows and other property and cancel his agreements to paint the two houses. The plaintiff thereupon, in order to get ready to commence work by March 10, 1952, disposed of his personalty at much less than the market price and also canceled the two contracts he had to paint two houses. Thereafter, on March 8, 1952, the plaintiff, having disposed of his personalty and canceled said contracts, informed the defendant's said manager that he was ready to move into the apartment immediately and to commence work on Monday, March 10, 1952, as they had agreed. The said Sifford thereupon informed the plaintiff that the defendant would let him know when to begin work, and on said date some other man had been engaged by the defendant and was then actually discharging the duties for which the plaintiff had been employed by the defendant. The plaintiff was ready to go to work March 10, 1952, and has at all times since then been ready, willing, and able to do said work and enter upon said employment. The defendant, through said Sifford, its manager, refused and now refuses to permit the plaintiff to discharge the duties of operating said boiler at The Darlington Apartments, for which the defendant employed the plaintiff. As a result thereof the defendant has injured and damaged the plaintiff in the following manner and in the following sums: Plaintiff sold three cows worth $375 for $275, sustaining a loss of $100; and sold a diningroom suite worth $250 for $25, sustaining a loss of $225. Plaintiff sold draperies from his living room worth $50 for $10, thereby sustaining a loss of $40. Plaintiff canceled the two painting contract, on which he would have made $600, thereby sustaining a loss of $600. Plaintiff made three trips to Atlanta and his time is worth $15 daily, thus losing $45. Plaintiff obtained a fireman's license from the City of Atlanta, and paid therefor $3. Plaintiff sold miscellaneous lumber and fertilizer on hand worth $150 for $15, thereby sustaining a loss of $135. All of said items of damage resulted directly because of the breach by the defendant of its contract with the plaintiff, and the defendant knew that the plaintiff was selling said property under distress circumstances, and the losses sustained by him were within the contemplation of the parties.

On May 5, 1952, the defendant demurred to the foregoing petition generally and also to paragraph 12 as alleging conclusions, and to paragraph 16 as alleging a conclusion in stating that the items of damage resulted directly because of a breach of the contract.

The defendant answered and denied liability. Thereafter, the plaintiff amended his petition by setting out that it was agreed that the plaintiff's employment would be permanent, and also that on March 8, 1952, the defendant employed some other person to discharge the duties which the plaintiff was to perform. Thereupon, on June 12, 1952, the defendant demurred to said amendment and to the petition as amended generally, and also demurred to paragraphs 10 through 16 of the original petition as not setting forth the correct measure of damages. The defendant also demurred to the allegations of paragraph 2 of the petition as amended, in that the petitioner has not set forth the correct measure of damages.

The trial court on June 13, 1952, overruled the defendant's demurrers, stating that the petition as amended set forth a cause of action against the defendant. The court disallowed the defendant's 'special demurrers filed this date numbered 2, 3, 4, 5, 6, 7, 8, and 9 [which] are all special demurrers to the plaintiff's petition as originally filed, and are untimely as being filed this date, are therefore disallowed, since any or all of them should have been filed at the first term of court.'

To this judgment the defendant excepted pendente lite. The case proceeded to trial before a jury, and a verdict was rendered in favor of the plaintiff for the full amount sued for, $1,148. The defendant moved for a new trial on the general grounds and by amendment added certain special grounds. The trial court overruled the defendant's motion for a new trial, as amended, and to this judgment the defendant excepted, and assigned error also on its exceptions pendente lite.

Grant, Wiggins, Grizzard & Smith, N. E. Parker, Jr., and Wm. G. Grant, Atlanta, for plaintiff in error.

Fraser & Shelfer, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

It is true, as contended by the plaintiff's counsel, that special demurrers to the plaintiff's petition must be interposed at the first term and that, where they are filed subsequently, they will not be considered. Code, §§ 81-1001, 81-1002, as amended by Ga.L. 1946, pp. 761, 775; see Rules 15 and 16 of Procedure, Pleading and Practice in Civil Actions. The revision of Code, §§ 81-1001 and 81-1002, by the acts of 1946 was necessitated by the substitution of an appearance day for an appearance term. See Rule 3 of Procedure, Pleading and Practice in Civil Actions, Ga.L.1946, pp. 761, 767, amending and revising Code, § 81-111. The rule that special demurrers must be interposed at the first term is not changed or abolished. 'As to defects of form, we understand it now is, and has ever been, the rule that advantage of them must be taken by special demurrer at the first term.' Richmond, etc., R. Co. v. Mitchell, 95 Ga. 78, 83, 22 S.E. 124, 125. Such demurrer is properly overruled where not filed in time. Smith v. Ice Delivery Co., 8 Ga.App. 767, 70 S.E. 195; Brown v. Georgia, etc., Ry. Co., 119 Ga. 88, 46 S.E. 71. A special demurrer is not amendable after the first term by adding new and independent grounds. Central of Ga. Ry. Co. v. Motz, 130 Ga. 414, 61 S.E. 1. In City Council of Augusta v. Lombard, 101 Ga. 724, 28 S.E. 994, it was held that, where a defendant at the first term filed a general demurrer to a petition, he could not at the second term amend such general demurrer by adding thereto grounds of special demurrer. See also Ford v. Fargason, 120 Ga. 708, 48 S.E. 180. It is also true that, if the plaintiff seeks to recover the wrong measure of damages in an action for breach of contract, the petition is subject to special but not general demurrer. 'If the petition sets forth the wrong measure of damages, this may be reached by a proper special demurrer, but the wrong measure of damages does not subject the petition to a general demurrer. * * * If the allegations of the petition entitled the plaintiff to recover only nominal damages, the action would not be subject to dismissal.' Elwell v. Atlanta Gas Light Co., 51 Ga.App. 919(6), 181 S.E. 599; Atlanta Plow Co. v. Bennett, 49 Ga.App. 672(6), 176 S.E. 822; Koch Co. v. Adair, 49 Ga.App. 824(3), 176 S.E. 680. However, where a petition in an action for breach of contract does not seek to recover general or nominal damages, but only seeks to recover of the defendant for its alleged breach of the contract sued on certain items of special damages, and none of these items are properly recoverable, the petition does not set out any cause of action and is subject to be dismissed on general demurrer. Where the petition does not allege damages which are recoverable of the defendant, the same fails to state a cause of action for the relief sought and is 'therefore subject to general demurrer.' See Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98(6), 70 S.E.2d 734. 'Where the petition cannot be construed as asking for general or nominal damages, but is expressly limited to a prayer for special...