Douglas v. Langford
| Decision Date | 09 May 1950 |
| Docket Number | No. 17061,17061 |
| Citation | 206 Ga. 864,59 S.E.2d 386 |
| Parties | DOUGLAS v. LANGFORD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where a general demurrer to a count of a petition is sustained with leave to amend, and the plaintiff does not except to the order but files an amendment, the ruling on general demurrer becomes the law of the case. Where the amendment adds nothing new or of substance to such count, but is a mere elaboration of the averments of the original petition, it is error to overrule a demurrer to the amendment and to the count as amended, assailing the amended count on this ground.
2. In an action for damages because of the alleged breach of a contract, where the court sustained certain special demurrers to a count of the petition, and struck from the count all allegations as to the defendant's alleged breach, and an amendment to the count was filed, setting up several different theories as to how the contract was breached, which are inconsistent with the breach originally alleged and inconsistent with each other, it was error to overrule the demurrers of the defendant to the amendment and the count as amended, pointing out these deficiencies.
This case is here on a bill of exceptions, which assigns error on the overruling of the defendant's motion to dismiss the petition as amended, and also on exceptions pendente lite filed to prior rulings on the demurrers of the defendant.
S. R. Langford filed suit against E. L. Douglas in two counts. Certain general demurrers to count 1 were sustained, and the general demurrers to count 2 were overruled. Certain special demurrers to each count were sustained and others overruled. The defendant filed exceptions pendente lite to this order in so far as it overruled his demurrers, but these exceptions were not filed within the time allowed by law. The plaintiff, being granted leave, filed amendments to both counts. The defendant filed general and special demurrers to the amendments and to the petition as amended, all of which demurrers were overruled, and, timely exceptions pendente lite filed. Subsequently the defendant's written motion to dismiss the petition on both counts as amended was overruled.
Count 1 of the original petition seeks to require the defendant to specifically perform a written contract for the sale of real estate. The contract, a copy of which is attached to the petition, is a real-estate-broker's sale contract signed by both parties, dated June 20, 1947, whereby the plaintiff is the buyer and the defendant agrees to sell through McNabb Realty Company a tract of land in DeKalb County for a consideration of $12,000. A portion of the contract recites: It was alleged in paragraph 4 of count 1 that, upon the plaintiff having the title examined, five specific defects were found, and that said defects had the effect of making the title to the property not marketable and good. Paragraph 7 alleged that notice of these defects was given to the defendant, and he informed plaintiff on July 25, 1947, that he had canceled and rescinded the contract and 'was unwilling to abide by the terms of the sale.' It was alleged that the defects could be cured by the defendant by registering the title under the Torrens Act, or by obtaining deeds from third persons, who were named. The prayers of count 1 were that the court direct the defendant to convey to the plaintiff a good and marketable title after having eliminated all defects therein.
The defendant filed general and special demurrers to this count. On December 6, 1947, general grounds 2 and 4 of the demurrer were sustained and the other general grounds overruled. Ground 2 alleged: 'It [the petition] prays for relief which the court cannot grant, or decree, to wit, specific performance of the contract of which a material part has to be settled by future negotiations between the parties.' Ground 4 alleged 'That no sufficient grounds are set out which entitle plaintiff to the extraordinary relief prayed.' One ground of special demurrer was sustained. By leave of the court the plaintiff filed an amendment that struck paragraph 4 of count 1 and substituted a new paragraph, which alleged that the defendant did not have a good and marketable title to the property sought to be sold, but that the record title was vested in a named third person. To this amendment and to the petition as amended the defendant filed renewed demurrers, one of the grounds being that the demurrers sustained by the court had not been met by the amendment. These demurrers were overruled on May 24, 1948, and exceptions pendente lite were duly filed, by the defendant. On January 23, 1950, the written motion to dismiss the petition as amended was overruled.
In count 2 as originally filed, the plaintiff seeks to recover damages by reason of an alleged breach of the sales contract which we have set out above. This count sets out the contract, and in paragraph 17 specifies the same defects in the title as were set out in count 1. Paragraph 18 of this count alleged: 'Your petitioner shows that the defendant has advised him that he is unwilling to give him a good and marketable title and that defendant will not abide by the contract but considers the same canceled, and he refuses to convey to your petitioner the property according to the terms and conditions of said contract.' It was alleged that the agreed purchase-price of the property was $12,000 and its market value $27,000, and the plaintiff prayed judgment for the difference between these sums.
The defendant's general demurrer to this count was overruled. Certain special demurrers were sustained. The court struck paragraph 17 of the petition, which set out the alleged defects in the defendant's title, and also struck paragraph 18, which is set out above. No exceptions were filed by the plaintiff. Exceptions pendente lite were filed by the defendant to the order which overruled certain paragraphs of his demurrers, but these exceptions were not filed within the time provided by law. The plaintiff thereupon filed an amendment to count 2 by adding nine paragraphs, which alleged substantially the following:
21. Petitioner had the title to the property described in paragraph 15 above examined. A complete abstract of the title to said property is attached to and made a part of this petition and is marked Exhibit C.
22. The defendant, E. L. Douglas, does not have a good and marketable title to the property described above.
23. There is no title of record into E. L. Douglas, nor has E. L. Douglas a title by possession for 20 years, or possession for 7 years under color of title, or by inheritance, or by devise or gift, or in any other way.
24. In accordance with the terms of the contract of sale, petitioner communicated in writing to the defendant a list of the legal defects in the title. A copy of said communication is attached to and made a part of this petition and is marked Exhibit D.
25. The defendant then refused and now refuses to do any act toward establishing a good and merchantable title to the property described, and then refused and now refuses to correct the defects in his title, as is set forth in the contract which is attached as Exhibit A.
26. The defendant not only refuses to correct the defects in his title, but then refused and now refuses to convey the title to said property even in a defective condition, and stated to petitioner that he considered the contract canceled and that he would not convey title to petitioner.
27. Petitioner, despite the defects pointed out in Exhibit D to this petition, tendered the purchase-money provided in the contract, and requested compliance with the contract.
28. Petitioner then offered and now offers to bring, at his own expense, such action as is appropriate to establish the fact that the defendant has a good and marketable title to the premises described above.
29. The defendant then refused and now refuses to bring such an action or to allow petitioner to bring such an action in his name
To this amendment and to the petition as amended the defendant filed general and special demurrers, the grounds of these general demurrers being: (a) the demurrers sustained by the court were not met; (b) the amended petition did not set out a cause of action in either count; (c) the amendment introduced a new cause of action; (d) the amendment changed the cause of action; (e) the amendment alleged a new construction of the contract and a different breach. Certain special demurrers were interposed, on the ground that the allegations in the...
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