Braddy v. W. T. Rawleigh Co.

1. The suit, as amended, was on an indebitatus assumpsit count for one debt, and for one only. The petition alleged that the defendants were indebted to the plaintiff on an unsealed note, on an account stated, and for a pre-existing debt on a written contract (all for the same indebtedness) which contract had been fully performed on the plaintiff's side, with nothing to be done by the defendant except to make a money payment. Such an action is not subject to demurrer for the reason that there is a misjoinder of causes of action.

2. There was no reversible error in the rulings on the demurrer, and in directing the verdict.

DECIDED MARCH 19, 1943. W. T. Rawleigh Company sued Barnett, Braddy, Pridgen, and Jones on a joint and several promissory note not under seal, for the principal amount of $735.54, besides interest and attorney's fees. Barnett filed his separate answer, which was stricken on demurrer. Braddy, Pridgen, and Jones filed their joint answer, in which they complained that the note sued on was conditionally delivered, in that the consideration of the note was a debt owing by Barnett as principal, and that these defendants had executed a contract of surety guaranteeing the payment of said debt of Barnett, which was a valid outstanding obligation on their part and was the same debt for which the note sued on was given. In response to the plaintiff's demurrer to the answer of the defendants, on the ground that the substance of such guaranty and surety contract was not set forth, the defendants amended their answer, alleging that such guaranty contract was executed by them in November, 1928, and was accepted by the plaintiff in January, 1929. They attached to said answer a copy of the portion of such contract signed by Jones, Pridgen, and Braddy which referred to the first portion of said contract signed by Barnett, both portions thereof naming Barnett as the buyer, and the plaintiff as the seller, and in which Braddy, Pridgen, and Jones "consented and agreed to all the terms and conditions of the part not attached." The portion executed by the three defendants immediately followed and referred to that executed by Barnett, both portions being on the same sheet of paper. After such amendment the court overruled the plaintiff's demurrer to the answer. The plaintiff by amendment struck its claim for attorney fees, and attached to its petition the original 1928 contract referred to in the answer of the defendants, and attached an original 1929 renewal contract accepted by the plaintiff on January 2, 1929, which was practically identical in substance as the 1928 contract, and covered the same subject-matter. "Your petitioner further shows that upon payment by the said defendants of the amount due on the said note sued upon, they are entitled to said contracts of surety ship; and this plaintiff herewith tenders and surrenders to these defendants by this amendment, and in open court, both of said original contracts of suretyship which it now holds, and asks judgment against these defendants." In both contracts (under seal) Braddy, Pridgen, and Jones jointly and severally agreed to pay to the plaintiff such sum as might be due by Barnett thereon for merchandise delivered to him by the plaintiff. The defendant in his answer alleged, "that the note sued on was tendered to the plaintiff on the express stipulation that the contract referred to . . was to be canceled and returned to defendants before said note became binding or effective; that the cancellation and return of said contract was, according to the agreement of the parties, to be effective upon the approval of the note sued on; that although said note was approved and accepted by the plaintiff on December 2nd, 1929, said contract of guaranty has never been canceled and returned to defendants, but same is still held by the plaintiff against these defendants." See Braddy v.W. T. Rawleigh Co., 64 Ga. App. 682 (14 S.E.2d 130). In none of the pleadings did any of the defendants, Braddy, Pridgen or Jones, deny the existence of such debt or that the amount sued for was due and owing, but instead they specifically contended that such amount was due to the plaintiff and was the subject-matter and consideration of the note originally sued on. When the case came on for trial on June 8, 1942, the plaintiff's amendments having been allowed, the defendants assumed the burden of proof, and the court ruled that the burden of proof was on them; and upon consideration of the pleadings and the evidence adduced, the court ruled that the defendants had not sufficiently carried such burden, and accordingly directed a verdict for the principal and interest sued for, as the claim for attorney's fees had already been dismissed by the plaintiff in its amendment. To the amended petition the defendants filed a demurrer which, among other things attacked it on the ground of misjoinder of parties and causes of action. This demurrer was overruled, and the defendants excepted pendente lite. The trial then proceeded, and the judge ruled that the burden was on the defendants. The only witness sworn was one of the defendants, J. T. Braddy, who testified in part as follows: "The note was executed on the agreement and condition that the W. T. Rawleigh Company would retain and continue to sell T. J. Barnett their goods and extend him more credit from time to time, so that he would go ahead with his work. The note was also signed and delivered to D. L. Salzman with the express understanding and condition that the 1928 and 1929 contracts held by the plaintiff against the defendants were to be turned over to us and become our property. The condition on which the note was signed and delivered was fully understood by D. L. Salzman, to whom it was delivered. The 1928 and 1929 contracts have never been returned to us according to our agreement with Salzman, nor has the note signed by us ever been returned to us." By the Court: "At the time the note was signed, was that the amount of money agreed to be due the Rawleigh Company at that time?" A. "Yes sir," Q. "It was understood that it was for a debt that had already accrued against Barnett in favor of the Rawleigh Company?" A. "Yes sir." "At this time Barnett admitted that the amount of the note was the amount of the account owing by him to the W. T. Rawleigh Company."

After the defendants closed their case, the plaintiff made a motion for a directed verdict, which was granted, and the verdict and judgment were rendered against the defendants. The defendants excepted to the overruling of their demurrer and to the direction of the verdict. The original suit was in the usual form of a suit on a promissory note, and when the amendments were allowed the suit was on an "indebitatus assumpsit count" for one debt, and only one — a single indebtedness. The petition alleged that the defendants were indebted to the plaintiff in a named sum on the unsealed note, on an account stated, and on a pre-existing debt on a written contract which had been fully performed on the plaintiff's side, and nothing was to be done except for the defendants to make a money payment. Tumlin v. Bass Furnace Co., 93 Ga. 594,599 (20 S.E. 44). The amendments were properly allowed. BartowGuano Co. v. Adair, 29 Ga. App. 644, 648 (116 S.E. 342);Kraft v. Rowland, 33 Ga. App. 806 (2) (128 S.E. 812). Where the plaintiff is thus using the "common count," and charging the defendants with a single indebtedness, which may have been evidenced in one or more ways, as here alleged in the "common count," the petition is not subject to demurrer for the reason that there is a misjoinder of parties and causes of action. None of the several ways is repugnant to each other. No election is necessary. 1 Chitty on Pleading, 466; Andrews' Stephen's Pleading, 86; Blackshear Manufacturing Co. v.Harrell, 191 Ga. 433 (12 S.E.2d 328).

At the trial the plaintiff could have recovered by proof of the indebtedness evidenced in any one of the several ways. Under such a common count, the plaintiff can not be required to elect in which of the particular ways such indebtedness was promised, but proof of any one of the ways will entitle it to recover. In other words, if it proved all of the ways it would be allowed to recover only $735.54, plus interest; and if it proved only one of the ways it would still be entitled to recover the same amount. Thus, if it proved the indebtedness in one, two, or all of the several ways, it could recover only for a single debt in the same amount. Blackshear Manufacturing Co. v. Harrell, supra. SeeCody v. State, 118 Ga. 784 (45 S.E. 622); Mahaffey v.Petty, 1 Ga. 261; Hancock v. Ross, 18 Ga. 364. The note was one of the three ways the plaintiff sought to prove that the defendants promised to pay for goods sold and delivered. And if it failed to prove one of them by failing to introduce the note in evidence, even though it had to account for the note, it could still recover by proof of one of the other methods pleaded in the common count, these being methods permitted by the law of pleading. To illustrate: Suppose the plaintiff had lost the note the day before the trial, it would neither have to strike that part of the common count which depended on its proof by the introduction of the note, nor would it have to establish the note, even though it would have to account for it; but it could otherwise proceed and prove the debt by any one of the other methods alleged in the common count. Thus in the instant case, even though the only witness for the defendants testified that the note was conditionally delivered, he further testified that the amount sued for was the correct amount which the defendant had failed to pay for goods sold and delivered under the sale contract. If the note referred to in the common count was past due at the time of the bringing of the suit, and was exhibited to the defendants during the trial, or the original note was attached to the petition, this would ordinarily be an accounting for the note by showing that it was not in any event enforceable against the defendants.

We think the judge did not err in overruling the general demurrer and in directing the verdict for the plaintiff. SeeBranch v. American Agricultural Chemical Cor., 22 Ga. App. 52 (95 S.E. 476).

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.