Huson Ice & Coal Co. v. City of Covington , 178 Ga. 6 ( 1933 )

ON MOTION FOR REHEARING.

Per Curiam.

The plaintiffs insist that this court has “ overlooked a fundamental rule of equity practice, that in passing on a demurrer the facts stated in this petition are to be taken as true.” That contention has reference to the ruling stated in the second headnote, supra. The plaintiffs’ petition alleged "that they did not know of the great amount of horse-power that was being transmitted over the lines that were connected to their motors until the rendering of the verdict and some' time thereafter made investigation and found that the defendant from the time of the contract up until and after the verdict was rendered for the amount of current being transmitted, found that the wires were not sufficient in size to carry the required voltage that was contracted for by plaintiffs. . . From knowledge and belief of the plaintiffs, the circuit that furnished the current from June 10 to September 28, 1931, to plaintiffs’ motors and lights, carried about 440 horse-power, distributed along said line that furnished gin-mills, marble-yards, radios, refrigerators, filling-stations, cooking-stoves, and numerous other electric appliances in homes, shops, and business houses. Further, the wires that transmitted the current to plaintiffs’ motors and lights being over 3000 feet or more in length, and said wire being in electric ‘terms known as number 6 wire,’ plaintiffs believe that from the national laws that govern the transmission of electric current, could not deliver the 220 volts as contracted for, and that the agent of defendant, H. O. Whelchel, who well knew the fact, and the only man that was in position to know these facts at the time the contract that was made between the plaintiffs and the defendant as set out in paragraph 4 of this petition, plaintiffs believe that the defendant wilfully or innocently defrauded them into making the contract as set out in paragraph 4 of this petition. To the damage that is due them from breach of the alleged fraudulent contract as set out in paragraphs 12, 13, and 14 of this petition as well as set out in paragraph of this petition. For each and all the foregoing items of damages the plaintiff sues.”

A demurrer admits only facts well pleaded. The above-quoted allegations of the petition will not be construed as allegations of fact, but as conclusions of the pleader. Neither the trial court nor this court was bound to accept as true, although alleged in the petition, that petitioners could not by the employment of competent electricians have ascertained all of the facts alleged prior to the original trial of the case in which the judgment sought to be set aside was rendered. The motion for rehearing is denied.