J. C. Pirkle MacHinery Co. v. Lester , 79 Ga. App. 512 ( 1949 )

The court did not err in overruling the general demurrer to the petition for the reasons stated in the opinion.

DECIDED MAY 21, 1949. REHEARING DENIED JUNE 30, 1949. Herbert P. Lester sued J. C. Pirkle Machinery Company Incorporated, to recover $6,000 for an alleged breach of a brokerage contract. The petition as finally amended alleged substantially the following: that the defendant company operates a brokerage business, dealing in textile plants, textile machinery, etc.; that defendant is indebted to the plaintiff in the sum of $6,000; that plaintiff obtained from A. L. Fuller of Whitesburg, and/or Newnan, Georgia, a listing, to sell "twenty whiting cards" (a whiting card being a heavy piece of machinery used in the textile industry for combing cotton fibre and other types of fibres) at a net price to A. L. Fuller of $5,000 per card, less 10% commission to the plaintiff; that on January 6, 1947, on the same day plaintiff obtained said listing, plaintiff entered into a contract with defendant company, acting through J. C. Pirkle, president of defendant company and its duly authorized agent, whereby defendant company agreed to find a buyer, negotiate and consummate the sale of said "twenty whiting cards" on a basis of 10% commission which was to be split "fifty-fifty" between plaintiff and defendant when the sale was consummated, less whatever expenses had been incurred in negotiating and closing said sale; that defendant company and J. C. Pirkle, president of defendant company agreed and did undertake to find a buyer on the foregoing terms, and that plaintiff gave to the defendant company the location of the "twenty whiting cards," which were at Newnan or Whitesburg, Georgia, and the property of A. L. Fuller; that defendant company by its President, J. C. Pirkle, acting under the agreement had with the plaintiff, did find a buyer for said "twenty whiting cards," namely, Norman S. McDowell, for the price of $4,300 each, net to said A. L. Fuller, or a gross sale price, each, of $4,900 of which sum $600 each was retained as commission for the sale of said cards by the defendant company, which makes the sum total of $12,000 commission for negotiating the sale of said cards; that plaintiff made demand on defendant company for the sum of $6,000, plaintiff's share of the commission, and for interest at 7% per annum from date of said sale; defendant company refused to pay such sums, or any part thereof. Plaintiff further alleged that the defendant company has all the records of the transaction with Norman S. McDowell, and that said defendant and its president, J. C. Pirkle, are hereby notified to have and produce into court the entire record pertaining to said sale to Norman S. McDowell, to wit: all telegrams, contracts, letters, paid checks, the daily office book record of sales, ledger, cash book, and any other item that shows data of said sale, same to be used by plaintiff as evidence in the trial of the case.

The defendant demurred generally to the petition as amended, and excepts to the judgment of the court overruling said demurrer. 1. The defendant's first contention is that the general demurrer should have been sustained because the petition failed to allege facts from which it could be determined that any amount was owing by the defendant to the plaintiff, and failed to show any reason why such facts could not be alleged. In other words, the contention is that in the absence of any allegation as to expenses incurred in making the sale, the petition failed to set out a cause of action. We do not think this contention is meritorious. It may be that there were no expenses. The demurrer assumes that there necessarily were some expenses incurred, and to this extent it was a speaking demurrer. Where a cause of action is set out for any amount a general demurrer should not be sustained. Williams v. Bernath, 61 Ga. App. 350 (3) (6 S.E.2d 184). The plaintiff alleged that the defendant was indebted to him in the sum of $6,000 and the petition does not show that any expenses were incurred in making the sale. "An allegation in the petition that the defendant [plaintiff] is due a named amount as the unpaid purchase-price is not subject to demurrer upon the ground that it is not alleged what amounts the defendant has paid upon the automobile, and when such payments were made." C. I. T. Corp. v. Davis, 49 Ga. App. 634 (2) (176 S.E. 821). Whether or not there was any expense incurred in making the sale would seem to be a matter of affirmative defense, which the defendant could plead and which it was not necessary for the plaintiff to negative in his petition. See, in this connection, Williams v. S. A. L. Ry. Co., 165 Ga. 655, 664 (141 S.E. 805); Yatesville Banking Co. v. Fourth NationalBank, 10 Ga. App. 1 (2) (72 S.E. 528). General allegations are sufficient as against a general demurrer. Morgan v.Limbaugh, 75 Ga. App. 663 (44 S.E.2d 394). If the defendant desired allegations as to expenses, it should have sought such information by a special demurrer and not by a general demurrer. The allegations of the petition, that the defendant had all the records pertaining to the sale and calling upon the defendant for the production of such records into court to be used as evidence by the plaintiff, put the defendant on notice that if, as a matter of fact, any expenses had been incurred in making the sale that fact could be developed upon the trial.

If a petition sets forth a cause of action either ex contractu or ex delicto, it will withstand a general demurrer. Citizens Southern Bank v. Union Warehouse c. Co., 157 Ga. 434 (6) (122 S.E. 327); Wometco Theatres Inc. v. United ArtistsCorp., 53 Ga. App. 509, 511 (186 S.E. 572). In determining whether a cause of action is set forth as against a general demurrer the courts have generally stated that all a plaintiff need allege is facts showing the existence of a duty owing by the defendant, a violation of that duty and damages resulting from that violation. 41 Am. Jur., Pleading, § 78. We think the petition in this case successfully meets this test. The petition is not so vague and indefinite as to come within the rule stated in Johnson v. Edwards, 147 Ga. 438 (94 S.E. 554).

2. Defendant further contends that the petition failed to allege that the contract was in force at the time of the sale. We do not agree with this contention. The petition alleged: "The said defendant company by its president, J. C. Pirkle, acting under the agreement had with plaintiff, did find a buyer for the said ``twenty whiting cards'." Such a general allegation as to the existence of the contract at the time of the sale is sufficient as against a general demurrer.

3. Defendant's third contention is likewise without merit. The contention is that the petition fails to describe the property with sufficient certainty in that it alleges that the cards were located at Newnan "or" Whitesburg, Georgia, and the defendant is unable to tell whether the petition is referring to the machinery in Newnan or the machinery in Whitesburg. The same is true as to the allegations respecting the owner, A. L. Fuller, who allegedly lived in Whitesburg "and/or" Newnan. Georgia. Even if the petition in this respect is subject to criticism, we are of the opinion that such defects should have been objected to by special demurrer and not by general demurrer as in this case.

The trial court did not err in overruling the general demurrer to the petition as amended.

This case was considered by the whole court as provided by the act approved March 8, 1945, Ga. L. 1945, p. 232.

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardnerand Townsend, JJ., concur. Felton, J., dissents.