Hopkins v. West Pub. Co., 39576

• Court: Georgia Court of Appeals
• Writing for the Court: BELL; FELTON, C. J., and HALL
• Citation: Hopkins v. West Pub. Co., 127 S.E.2d 849, 106 Ga.App. 596 (Ga. App. 1962)
• Decision Date: 05 September 1962
• Docket Number: No. 1,No. 39576,39576,1
• Parties: Margaret HOPKINS v. WEST PUBLISHING COMPANY

Page 849

127 S.E.2d 849

106 Ga.App. 596

Margaret HOPKINS v. WEST PUBLISHING COMPANY.

No. 39576.

Court of Appeals of Georgia, Division No. 1.

Sept. 5, 1962.

Rehearing Denied Sept. 24, 1962.

Syllabus by the Court.

1. There is no 'Jack Jones' form of action where a petition contains averments additional to those allowed by the statute. The petition here departed from the form and is subject to general or special demurrers.

2. The vendor in a conditional-sale contract may pursue any number of consistent remedies to enforce the payment of the debt until it is satisfied. Obtaining a judgment on the note and foreclosure of the security device are consistent remedies, and the utilization of one will not constitute either an election or abandonment of the other.

3. A special demurrer to the petition on the ground that there was no provision in the contract sued upon for payment of any interest at any certain rate is without merit because a statute specifies the rate of interest chargeable where the interest rate is not named in the contract.

4. The vendor may recover the court costs and the sales tax incurred in the foreclosure and sale of property covered by a conditional-sale contract since only the net proceeds from the sale of the property by foreclosure are to be credited to the debtor.

5. Where the conditional-sale contract sued upon contains no provision for payment of attorney's fees, such fees incurred in the course of foreclosure against the property are not recoverable in an action to obtain a deficiency judgment against the conditional vendee.

6. The special demurrer attacking the bill of particulars was not perfect in itself and, therefore, was properly overruled.

Plaintiff's action was for the recovery of the balance due upon a contract in writing attached to the petition, which provided for a 24-volume set of books to be paid for in installments. Count 1 declared upon this contract which recited that the vendor 'retains title to said books until paid.' The petition contained a listing of debits and credits. The credits consisted of one payment and the proceeds of the sale of repossessed collateral. The debits consisted of interest, the balance due on the contract, the court costs of foreclosure, the attorney's fee for foreclosure, and the sales tax on the foreclosure.

Count 2 sought recovery for the unpaid balance due upon an account attached and evidenced by the bill of particulars which included the balance upon the conditionalsale contract and items delivered under a subscription contract account. Count 2 sought recovery of the balance due on the subscription contract account plus 'interest to date' in amounts set out in the affidavit of the accounts auditor of the plaintiff.

The defendant demurred generally to plaintiff's petition as a whole and to counts 1 and 2. Defendant specially demurred to a portion of count 1, setting out the debits and credits upon the conditional-sale contract, which included an item, 'Plus $26.50 interest,' upon the ground that it is vague, uncertain and indefinite, and a mere conclusion of the pleader with no facts set out to support it, in that the rate of interest and the time for which the interest is claimed is nowhere set out; and upon the ground that there is no provision in the contract sued on for payment of interest at any certain rate.

Defendant specially demurred to the portion of count 1 of the petition reading, 'Plus court costs of foreclosure--$13.81,' upon the ground that this was a mere conclusion of the pleader since no facts were set out in the paragraph or elsewhere in the petition or by way of exhibits embodying the alleged foreclosure proceeding, and upon the ground that the petition contained no allegation whatsoever upon which any legal liability of the defendant for the court costs could be based.

Defendant's special demurrer numbered 6 demurred to the portion in count 1 of plaintiff's petition containing the itemization of debits and credits to the addition of a charge of attorney's fees for foreclosure upon several grounds, including that the contract sued upon contained no provision for the payment of attorney's fees and that there is no constitutional or statutory liability for attorney's fees in the absence of a contractual provision.

Defendant specially demurred to the portion of plaintiff's petition charging, 'Plus sales tax on foreclosure--$2.55,' upon the ground that there is no legal liability upon the defendant in a foreclosure proceeding for the payment of such tax, and under the Sales and Use Tax Act the liability for the tax rests upon the purchaser or dealer.

The last special demurrer of the defendant was to exhibit 'B', of count 2, which is denominated a bill of particulars, and moved to strike it upon the ground that it was misleading and confusing in that it contains amounts claimed due under count 1 of the petition in the total amount of $427.05, whereas the amount claimed due in count 2 was $126.55; and that the subscription account set out in exhibit 'B' was a part of the original contract set out in exhibit 'A' attached to count 1 of the petition and is subject to the same terms and conditions as set out in count 1 and moved to strike the exhibit upon the ground that it was duplicitous.

The trial court overruled all of the defendant's general and special demurrers on each and every ground, to which the defendant excepted.

Essley B. Burdine, Atlanta, for plaintiff in error.

Paul C. Myers, Atlanta, for defendant in error.

BELL, Judge.

1. Plaintiff contends that this petition in both counts was pleaded in the short or 'Jack Jones' form and, therefore, must be held to set out a cause of action. The form of such a petition is sufficient if it follows the form allowed by the statute, and no additional averments are necessary to let in the proof essential to a recovery. Henry Darling, Inc. v. Harvey-Given Co., 40 Ga.App. 771(1), 151 S.E. 518. However, where additional averments are placed in the petition, it is to be tested by the usual rules for construction of a petition and is not protected under the statute from attack by a general or special demurrer. Hurt & Quinn, Inc. v. Keen, 89 Ga.App. 4, 78 S.E.2d 345. The present petition not only does not follow the short form, it also contains additional averments. This exposes the petition to the rule of the Hurt case and renders it subject to any meritorious general or special demurrers.

2. The defendant's contention that the petition did not state a cause of action is grounded upon earlier cases where the bail trover process was used by the vendor to repossess the property. These cases, of which Glisson v. Heggie Bros., 105 Ga. 30, 31 [106 Ga.App. 599] S.E. 118, is representative, held that bail trover proceedings constituted a rescission of the contract as to the balance of the purchase money. We regard Glisson and similar cases as not being applicable to the situation where the vendor under a conditional-sale contract has resorted to the foreclosure process and sold the property and now seeks to recover a deficiency judgment. The contract between the parties clearly provides that the title to the property is retained in the seller 'until paid.' No particular form is necessary to constitute either a mortgage on personal property (Code § 67-102) or a conditional sale of personalty (Code § 67-1401). If personal property is delivered on a contract of sale containing the agreement that title is to remain in the seller until the purchase price is paid, the title does not pass at the delivery of the goods, and the transaction is a conditional sale. A. O. Blackmar Co. v. Wright Co., 62 Ga.App. 861(1), 862, 10 S.E.2d 117. Indeed a conditional-sale contract may be valid and enforced between the parties whether or not it is in writing. Code § 67-1401. Where the litigation is between the parties to a title-retention contract and no third party's rights are involved, an oral contract is sufficient. Trussell v. Vandiver, 86 Ga.App. 749(1), 72 S.E.2d 319.

A person holding a mortgage, or a bill of sale to secure debt, or a conditional-sale contract may pursue any number of consistent remedies to enforce the payment of the debt until it is satisfied. Obtaining a judgment on the note and foreclosure of the security device are consistent remedies, and the utilization of one will not constitute either an election or abandonment of the other. Pioneer Investment, Inc. v. Adrine, 97 Ga.App. 520(2), 523, 103 S.E.2d 686. It is a matter of common knowledge that foreclosure of a mortgage or some other process by which the security is sold is the usual process and a necessary antecedent step leading to a proceeding for a deficiency judgment. It would be absurd to hold that foreclosing and selling the property prevents the maintenance of an action for a deficiency judgment for the balance of the indebtedness remaining unpaid after crediting the proceeds of the foreclosure sale. There is no attack upon the validity of the foreclosure sale. The petition gives credit upon the balance due on the conditional-sale contract for the proceeds resulting from the foreclosure and sale of the property conditionally sold.

The instrument sued upon was a...