Henderson v. Liberty Loan Corp. , 106 Ga. App. 122 ( 1962 )

Felton, Chief Judge.

1. Where an action in trover purported to be brought in the “Jack Jones” form but which showed by reference to an exhibit attached to the petition that the title to the property sued for was in the plaintiff by reason of a bill of sale to secure debt, the first monthly payment becoming due on April 20, 1961, and the last on September 15, 1962, and where it is nowhere alleged in the petition that there had been a breach of the bill of sale to secure debt, the petition was subject to general demurrer. General Motors Acceptance Corp. v. Jones, 98 Ga. App. 391 (1) (106 SE2d 67); American Nat. Bank &c. Co. v. Davis, 104 Ga. App. 586 (122 SE2d 477).

2. The allegation added by amendment to the petition “that defendants are now in default under the provisions of ‘Exhibit A’ as attached to plaintiff’s original petition and demand having been made defendants refuse to comply with the terms of said exhibit” was subject to the special demurrer, the ground of which is that the amendment did not show that the defendants were in default on December 2, 1961, the date on which the trover action was filed, the amendment having-been filed on January 9, 1962. The amendment, even though it dated back to the date of the filing of the action, was ambiguous in that it did not clearly allege that the contract was in default on or before the date of the filing of the action.

Decided June 7, 1962. James E. Hardy, for plaintiffs in error. A. A. Roberts, contra.

The court erred in overruling the special demurrers directed at the petition as amended and is directed to sustain special demurrers and the general demurrer in the event the petition is. not amended to allege that the contract was in default on the date the action was filed.

Judgment reversed with direction.

Bell and Hall, JJ., concur.