Massell Realty Co. v. Washburn

• Decision Date: 17 September 1926
• Docket Number: 16980.
• Citation: 134 S.E. 798,35 Ga.App. 707
• Parties: MASSELL REALTY CO. v. WASHBURN.
• Court: Georgia Court of Appeals

134 S.E. 798

35 Ga.App. 707

MASSELL REALTY CO. v. WASHBURN.

No. 16980.

Court of Appeals of Georgia, Second Division

September 17, 1926

Syllabus by the Court.

Irrespective of whether the petition prior to its amendment was or was not defective, as urged by the general demurrer, the plaintiff having submitted to the adverse ruling on the demurrer by seeking to amend his petition so as to conform to that ruling, cannot thereafter be heard to complain that the ruling was erroneous, and that the amendment which he chose to offer was in fact unnecessary; and this is true although he may have excepted to the ruling. Smith v. Bugg, 35 Ga.App. 317, 133 S.E. 49. The effect of the original order sustaining the demurrer, as thus acquiesced in by the plaintiff, was to adjudicate that the petition as it then stood was defective for the reason stated in the demurrer and must be amended within the time allowed under the terms of the order.

Under the original petition, as first informally amended, the rented premises being described as under process of construction in accordance with existing plans and specifications prepared by a named person, with the allegation that a copy of the "plans" as attached to the contract was made a part of the petition, might reasonably have indicated the existence of separate specifications forming a part of the contract, which, not being attached, rendered the petition subject to demurrer but since, under the written amendment filed in response to the defendant's renewed demurrer, it was specifically shown that the plans referred to as attached to the contract an by the amendment made a part of the petition, embraced all of the terms and agreement entered upon with reference to the rented storeroom then in process of construction, the petition as thus amended was no longer subject to objection on account of the contract sued on not being fully set forth, nor could it then be subject to the alleged objection that the petition indicated that a part of the contract sued on was not in writing.

The petition as finally amended was not subject to demurrer on the ground that the contract sued on was so vague and indefinite with reference to the subject-matter of the agreement as to render it incapable of enforcement. This being true, and it not appearing from the petition that the contract was violative of the statute of frauds, it was error to dismiss the petition as finally amended.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Suit by the Massell Realty Company against Clyde Washburn. Judgment for defendant was affirmed on certiorari to the superior court, and plaintiff brings error. Reversed.

Jones, Evins, Moore & Powers, of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise, of Atlanta, for defendant in error.

JENKINS P.J.

This was a suit in the municipal court of Atlanta to recover the first three months' rental for a store building under an alleged lease for a term of five years. The original petition alleged that:

"On the 8th day of April, 1924, the said Clyde Washburn did enter into a lease contract with your petitioner for a term of five years, beginning the 1st day of May, 1924, or as soon thereafter as the building herein described was completed, a certain storeroom 25 feet by approximately 175 feet, in a building located on the northeast corner of West Peachtree and Pine streets in the city of Atlanta, Fulton county, Georgia, said building being then in the process of construction, at an agreed rental of $300 per month during the first two years and $350 per month during

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