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Action on contract. Before Judge Etheridge. Fulton Civil Court. October 10, 1952.
The petition, as finally amended, stated a cause of action for some of the items of recovery sought, at least, and the trial court did not err in overruling the general demurrer thereto.
Miss Mary Alice Tingle sued Mrs. Montene Kelly for money alleged to be due her as the result of a course of dealing in connection with a lease to the defendant of certain premises owned by the plaintiff. The defendant demurred generally and specially to the petition; the trial court entered an order sustaining some of the special demurrers and overruling the other demurrers, with leave to the plaintiff to amend. The plaintiff filed an amendment to meet the order, and the defendant renewed her original demurrers and added certain others. The trial court entered another order sustaining some of the special demurrers and overruling the other special demurrers and the general demurrers. The plaintiff again amended her petition and the defendant again filed demurrers thereto. The trial court entered an order overruling the defendant's demurrers to the petition as amended, and the defendant filed her bill of exceptions to that order assigning error in the following language: "To that portion of the order and judgment of the court overruling the general demurrer, Mrs. Montene Kelly then and there excepted and assigned error and here and now excepts and assigns error upon the ground that the same was and is contrary to law."
The petition as finally amended alleged in substance: that the defendant is indebted to the plaintiff in the sums of and for the matters set forth; that the plaintiff was the landlord and the defendant the tenant under a written lease of certain premises dated March 1, 1950, which lease is recorded in a certain numbered deed book in the office of the clerk of the superior court; that defendant canceled and surrendered said lease to plaintiff on December 15, 1950, and as a part of such cancellation it was agreed that the rents on the premises would be prorated as of December 15, 1950; that defendant owes plaintiff $450 as rent for one-half of the month of December, 1950; that the original lease agreement provided for the payment of monthly rental of $1100 in advance, but, by oral agreement entered into between plaintiff and defendant, plaintiff agreed to a rental of $900 per month, which agreement, though made without legal consideration and not binding the plaintiff, will be adhered to by her; that the amount of $450 represents one-half of the monthly rental for December, 1950; that defendant is further indebted to plaintiff for $265, the amount of the November, 1950, monthly rental remaining unpaid after two payments, one made on November 5, 1950, of $535 and one on November 18, 1950, of $100, were paid; that defendant is further indebted to plaintiff for rent collected by defendant from tenants of the premises which accrued for the period after December 15, 1950, in the amount of $655.17, and in connection with this allegation there is set forth in the petition a schedule showing the names of the tenants and the apartment numbers occupied by them, the amounts of rent paid by each, the date of payment, the period covered by such payment, the number of days due the plaintiff and the amount due; and the petition further alleges that the defendant is indebted to the plaintiff in the sum of $2,315.55 plus 8% per annum upon a note executed by the defendant to First National Bank of Atlanta, on which note the plaintiff signed as an accommodation guarantor, on which the defendant has defaulted and on which the bank has filed suit against the plaintiff and the defendant, and which the plaintiff will be forced to pay. A copy of said note was attached to the petition as an exhibit, and showed that the face amount of the note was $2,874.50, and it was alleged that payments totaling $558.95 were made by the defendant on certain dates set forth in the petition.
Under the state of the record and bill of exceptions in this case, we have for consideration only the question of whether the petition as finally amended set forth a cause of action as against the general demurrer. Code 6-1607; Collins v. Carr, 111 Ga. 867 (1) (36 S. E. 959); Strickland v. Roe, 66 Ga. App. 571 (1) (18 S. E. 2d 567); Hall v. Davis, 75 Ga. App. 819, 820 (44 S. E. 2d 685).
As was said by Judge Parker speaking for this court in Vickers v. Georgia Power Co., 79 Ga. App. 456, 458 (54 S. E. 2d 152): "All that a plaintiff need allege to withstand the attack of a general demurrer is the factum of . . . [a] duty, whether [arising] by contract or otherwise, a violation of that duty, and damages resulting from that violation. 41 Am. Jur., Pleading, 78." In the instant case the allegations show simply the relationship of landlord and tenant between the plaintiff and the defendant, the defendant being the tenant, an agreement thereunder for the payment of a certain sum monthly as rental on the premises in question, and the failure of the defendant to pay such sum for a period during the time when the obligation subsisted. Further, there are other allegations showing a net agreement between the parties, under which certain obligations devolved upon the defendant respecting the payment of sums in connection with the termination of the former agreement, and allegations showing clearly a failure on the part of the defendant to perform the obligations devolving upon her under the alleged new agreement. As against the general demurrer, and without regard to the other allegations in the petition, these allegations, at least, were sufficient. Bowles v. White, 206 Ga. 433 (57 S. E. 2d 547); O'Hara v. Youmans, 82 Ga. App. 164, 165 (60 S. E. 2d 841).
The trial court did not err in overruling the general demurrer to the petition as finally amended.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.
George Starr Peck, contra.
Leiter & Leiter, for plaintiff in error.
DECIDED MAY 13, 1953.
Saturday May 23 04:16 EDT

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