Rich v. Belcher

• Decision Date: 16 May 1931
• Docket Number: 21129.
• Citation: 158 S.E. 643,43 Ga.App. 377
• Parties: RICH v. BELCHER.
• Court: Georgia Court of Appeals

158 S.E. 643

43 Ga.App. 377

RICH v. BELCHER.

No. 21129.

Court of Appeals of Georgia, Second Division

May 16, 1931

Syllabus by Editorial Staff.

Technical pleading is not required in justice's court, though cause of action must be alleged with some certainty (Civ. Code 1910, § 4715).

Pleading in justice's court is sufficient if defendant is informed of nature of plaintiff's demand (Civ. Code 1910, § 4715).

Open account sued on in justice's court showing month and year of purchases and specifying articles and price held sufficiently itemized (Civ. Code 1910, § 4715).

Suit on open account in justice's court held not barred by limitations because itemized account showed some purchases over four years before suit, where also showing general credit for more than such items (Civ. Code 1910, § 4316).

Civ Code 1910, § 4316, authorized debtor to appropriate payment to one of several demands against him, and authorized creditor to make appropriation if debtor failed to do so, and provided that, if neither exercised privilege, law would direct application of payment in most reasonable and equitable manner.

Presumption of husband's consent to wife's agency to purchase necessaries can only be rebutted by showing articles were not necessaries or that seller had notice of allowance to wife by husband sufficient to enable her to procure necessaries without husband's credit (Civ. Code 1910, § 2996).

Husband's reference to wife and family, in suit for wife's purchases, authorized inference that husband and wife were living together (Civ. Code 1910, § 2996).

Testimony that plaintiff informed clerk of husband's instruction not to charge children's purchases, making no reference to wife's purchases, held harmless against husband.

General finding for plaintiff suing on open account authorized judgment for entire balance due, where correctness was not disputed.

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Action by A. B. Belcher against E. Rich. Judgment for plaintiff defendant's certiorari was overruled, and defendant brings error.

Affirmed.

P. D Rich, of Bainbridge, for plaintiff in error.

A. B. Conger, of Bainbridge, for defendant in error.

Syllabus OPINION.

JENKINS P.J.

1. While the plaintiff, in a suit in a justice's court, must set forth, with some degree of certainty, his cause of action (Thomas & Blake v. Forsyth Chair Co., 119 Ga. 693, 46 S.E. 869), technical pleading is not required. Fine & Bro. v. Southern Exp. Co., 10 Ga.App. 161, 163, 73 S.E. 35; Cooney v. Foote, 15 Ga.App. 455, 83 S.E. 696. Accordingly, a liberal construction has been given section 4715 of the Civil Code (1910), and, if the defendant in a justice's court is informed of the nature of the plaintiff's demand against him, the requirement of the Code section is met. Kinney v. Kinney, 20 Ga.App. 816, 93 S.E. 496. In the instant case the open account sued on in the justice's court was sufficiently itemized, in that it showed the month and year of each purchase, and specified each article, and the price of each article going to make up the account.

2. "When a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated. If he fails to do so, the creditor has the right to appropriate at his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties." Civil Code (1910), § 4316. Accordingly, the instant suit was not subject to demurrer on the ground that it was barred by the statute of limitations, because the itemized account showed that some of the purchases going to make up the account were made more than four years prior to the bringing of the suit where it showed also a general credit representing a payment...