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Lawskills.com Georgia Caselaw
PENDLEY v. STEWART et al.
42880.
Declaratory judgment. Fulton Superior Court. Before Judge Pye.
JORDAN, Presiding Judge.
There is no merit in any of the enumerated errors.
Raymond J. Stewart and Dan P. James commenced this action in Fulton Superior Court by a petition filed on July 11, 1966, seeking a declaratory judgment and other relief against Hubert L. Pendley and Joseph D. Daniel. The petition shows in general that Mid-South Enterprises, Inc., leased premises in Smyrna, Ga., from Daniel, and that the plaintiffs, as agents for the corporation, took possession and began operating a business known as Cibo House, and incurred various secured debts for equipment used to operate the business. Thereafter the plaintiffs, as agents for the corporation, sold the equipment to Pendley and assigned the lease to him, at which time he agreed to pay all indebtedness incurred in the operation of Cibo House, with certain exceptions, and to indemnify the seller from any loss arising from a failure to pay such indebtedness. Pendley defaulted on the payment of rent and other indebtedness, and the plaintiffs, as the assignees of the corporation and as the guarantors for the payment of various secured obligations, sought to avoid personal liability for the payment of rent due under the lease, and recovery from Pendley for various losses incurred by reason of his default.
After a long series of legal maneuvers and the settlement of the controversy over the rent, plaintiffs eliminated the declaratory judgment aspect of the action and filed a substituted petition on April 6, 1967, against Pendley and Mid-South Enterprises, Inc., reiterating the agreement between Mid-South, by and through the plaintiffs as its agents, and Pendley, and the default of Pendley with respect to the payment of various debts, eliminating the default in the payment of rent, and asserting their right, as the assignee of Mid-South, to recover from Pendley, including attorney fees resulting from the alleged breach of contract. On the same date the defendant Pendley demurred generally and specially to the new petition, and renewed various previous demurrers, and the trial court ordered the plaintiffs to set forth certain details with particularity on or before April 10, 1967, and scheduled the case for further consideration of the pleadings on April 12, 1967. The plaintiffs offered an amendment to the petition, which was allowed and filed on April 10, 1967, and scheduled the case for further consideration of the pleadings on April 12, 1967. The plaintiffs offered an amendment to the petition, which was allowed and filed on April 10, 1967, subject to demurrer and objection, and the defendant Pendley renewed his previous demurrers and added numerous additional grounds. On April 12, 1967, the trial judge allowed two additional amendments to the petition, the defendant Pendley again renewed his demurrers, and added additional grounds of special demurrer, whereupon the trial judge overruled all demurrers, from which order, and the order of April 6, 1967, Pendley appeals to this court.
1. The appellant asserts by his third enumerated error that the trial court erred in its order dated February 22, 1967, requiring the plaintiffs to make Mid-South Enterprises, Inc., a party defendant, as the corporation should be a party plaintiff. The record discloses the defendant Pendley demurred specially to the original petition on the basis of the nonjoinder of Mid-South as a necessary party, giving as the reason therefor the alleged facts in the petition showing that Mid-South was a party to the original contract with Daniel. In the order of February 22, 1967, the trial judge, based on a consideration of the demurrers, allowed the plaintiffs one day to add Mid-South as a party defendant, and when the plaintiffs tendered such an amendment issued a rule nisi to the parties and Mid-South to show cause why Mid-South should not be added. It is thus evident from the record that the ultimate addition of Mid-South as a party defendant was induced by the effort of the defendant Pendley to bring Mid-South into the action, and that he complains only because Mid-South is a party defendant instead of a party plaintiff. A special demurrer, being itself a critic, must be perfect, and the demurrer of the defendant Pendley, whereby he seeks to show that Mid-South is a necessary party by reason of the allegations of the petition, ignores those allegations which purport to establish the plaintiffs as legitimate successors to the rights of the corporation in respect to any claims against Pendley. As a special demurrer it affords not basis for bringing Mid-South into the action as a party plaintiff or defendant. Faced with the fact that Mid-South is a party defendant, even if the addition of this party to the action were not self-induced by the defendant Pendley, it would seem that one defendant cannot demur on the premise that he is improperly joined with another defendant who does not object. See Warthen v. Brantley, 5 Ga. 571. Misjoinder or nonjoinder may be a defect which is self-evident from the petition and thus afford a basis for demurrer. Code 91-304. But any other pleading which attempts to reach such a defect must be treated as a dilatory plea, and is defective as such unless verified on oath. See Code Ann. 81-403; Macon & Western R. Co. v. Davis, 27 Ga. 113. The third enumerated error is without merit.
2. The appellant asserts by his second enumerated error that the trial court erred in its order of April 6, 1967, and contends that in this order the court should have sustained his demurrers and dismissed the petition. It is evident from the language of the order that the trial judge was sustaining certain demurrers to the extent of requiring the plaintiffs to amend their petition within a specified time limit, after which he would give further consideration to the pleadings. The ruling was adverse to the defendant Pendley only to the extent that it involved the implicit recognition that the petition contained enough to amend by, and in that respect the petition was clearly sufficient. There is no merit in this enumeration of error.
3. The appellant asserts in his fourth enumerated error that the trial court erred on April 12, 1967, in allowing an amendment to the petition showing that on September 12, 1964, the plaintiffs guaranteed the payment of an obligation of Mid-South to General Electric Credit Corporation, an obligation which did not arise until a contract was executed between Mid-South and General Electric Credit Corporation, which contract is dated September 17, 1964. The exact terms and conditions of the guaranty are not shown, but it does appear that the balance due by Mid-South was $3,994.72, and that the plaintiffs as guarantors, obtained a release upon payment of $1,500, which they seek to recover, plus $50 paid to an attorney to negotiate the settlement. The mere fact that the guarantors agreed to pay a debt which did not come into being as evidenced by a contract apparently executed five days after execution of the contract of guaranty would not vitiate the guaranty, for it is clear that one can execute a contract of guaranty making himself liable for future debts to be incurred by another. See Frank & Co. v. Nathan, 159 Ga. 202 (2) (125 SE 66); General Finance Corp. v. Welborn, 98 Ga. App. 280, 284 (105 SE2d 386); Ebner v. Gulf Oil Corp., 99 Ga. App. 586 (3, 4) (109 SE2d 81); Woods v. Universal C. I. T. Credit Corp., 110 Ga. App. 394, 397 (138 SE2d 593). There is no merit in the fourth enumerated error.
4. Finally we reach the first enumerated error, wherein the defendant Pendley asserts that the trial judge erred in his final order of April 12, 1967, overruling all grounds of demurrer. The petition plainly and clearly sets forth a cause of action by the plaintiffs against Pendley showing right to recover for losses occasioned by his default in meeting the obligations of his contract with Mid-South, and the grounds of special demurrer are without merit.
Judgment affirmed. Deen and Quillian, JJ., concur.
Spearman, Bynum & Goodwin, W. L. Spearman, for appellees.
P. C. King, Jr., for appellant.
ARGUED JUNE 8, 1967 -- DECIDED SEPTEMBER 8, 1967 -- REHEARING DENIED SEPTEMBER 19, 1967.
Friday May 22 19:34 EDT


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