Ogletree Hatchery, Inc. v. John W. Eshelman & Sons, Inc.
| Decision Date | 25 April 1966 |
| Docket Number | Nos. 41657,No. 3,41671,s. 41657,3 |
| Citation | 149 S.E.2d 923,113 Ga.App. 761 |
| Parties | OGLETREE HATCHERY, INC., et al. v. JOHN W. ESHELMAN & SONS, INC. JOHN W. ESHELMAN & SONS, INC. v. OGLETREE HATCHERY, INC., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the pleadings in a case disclose no genuine issue of material fact, summary judgment may be granted on the pleadings alone.
2. The error considered in Division 2 of the opinion was harmless.
3. A special demurrer which states merely that a portion of a pleading is defective because it fails to allege sufficient facts or fails to allege certain specified facts does not reach any defect in the pleading.
4. A special demurrer which merely points out a portion of a pleading and states that the pleading is irrelevant, without pointing out how or why the pleading is irrelevant, is not sufficiently specific to present anything for consideration by the court.
John W. Eshelman & Sons, Inc. filed suit against Ogletree Hatchery, Inc. to recover an indebtedness incurred by the defendant upon open account for the purchase of poultry feed from plaintiff. Defendant filed an answer and cross action based upon breach of warranty and alleging that the feed obtained from plaintiff over a nine-month period was not reasonably suited to the use intended, that during that period defendant produced and sold 967,589 broilers with a total weight of 3,189,130 pounds, that the total weight of these broilers should have been 438,119 pounds more than it was and because of this deficiency in weight defendant lost $63,902.69 anticipated income. Defendant claimed also that during the nine-month period it mixed $189,191.83 worth of corn with feed purchased from plaintiff, thereby rendering the corn worthless. Upon demurrer, paragraph 16 of defendant's cross action alleging damages for loss of the corn was stricken. By order of the court, after plaintiff had amended its petition, M. M. Ogletree, Jr. and M. M. Ogletree, Sr. were made individual parties defendant. Thereafter the trial court granted summary judgment in favor of plaintiff against the corporate defendant 'for the sum of $202,649.22, subject to be reduced by whatever amount the corporate defendant may recover in its cross action * * * which recovery on said cross action shall not be in excess of $63,902.69.' Defendant enumerates error upon the summary judgment for plaintiff and upon the judgment sustaining plaintiff's special demurrer to paragraph 16 of the cross action. Plaintiff in its cross appeal, enumerates error upon judgments of the trial court on certain special demurrers.
Reed & Dunn, Robert J. Reed, Gainesville, for plaintiffs in error.
Kenyon & Gunter, E. D. Kenyon, Gainesville, Howard Fowler, Lawrenceville, for defendant in error.
1. In its cross action seeking damages for loss of income in terms of gross income the the corporate defendant obviously was not entitled to recover in addition the ordinary business expenses incurred to produce that income. Defendants alleged loss of corn was a business expense. To whatever extent the defendant failed to get the benefit of this corn because of the quality of the feed with which the corn was mixed, the loss is included in the alleged loss of income.
Excluding from consideration paragraph 16 of the cross action claiming illegal damages for loss of defendant's corn, the only remaining matter interposed by the corporate defendant in response to plaintiff's suit on account is defendant's claim in the amount of $63,902.69 for loss of anticipated income. Thus the plaintiff's right to recover the $202,649.92 in its suit upon open account stands undisputed in the pleadings except to the extent of $63,902.69 sought in the cross action. The corporate defendant admitted in its answer that it had received the amounts of the feed concentrate forming the basis of the suit and nowhere denied the correctness of the invoice prices of the amounts of concentrate received. Under these circumstances, the trial court was authorized to grant summary judgment on the pleadings alone. See Dillard v. Brannan, 217 Ga. 179(3), 121 S.E.2d 768; Sanders v. Appha Gamma Alumni Chapter, 106 Ga.App. 137, 139, 126 S.E.2d 545; Mingledorff v. Bell, 107 Ga.App. 685(1), 131 S.E.2d 118.
The trial court did not err in granting summary judgment for plaintiff for the amount sued for by plaintiff subject to the condition set forth in the court's order.
2. Plaintiff's special demurrer to paragraph 16 of the corporate defendant's cross action alleging damages for loss of the defendant's corn was defective. See Division 4, infra. Thus the court erred in sustaining this demurrer. However, although the ruling was erroneous it was harmless as the trial court excluded the illegal damages by correct and appropriate order on its grant of summary judgment.
3. In the third amendment to plaintiff's petition, plaintiff alleged matter seeking to recover against the individual defendants on the theory that they, by oral agreement with plaintiff, had assumed responsibility as guarantors for payment of the corporate defendant's indebtedness to plaintiff. We do not decide whether this matter, contained in paragraph 7 of the amendment, together with other allegations of the amended petition, was sufficient to state a cause of action against the individual defendants as guarantors. This question is not before this court. If defendants wished to...
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