1. While the lawyers associated in representing a client on a contingent basis, that is, where their compensation is dependent upon the success of the litigation undertaken, are benefited by the services of each other, their services are rendered under the contract of employment to and for the benefit of their common client.
2. The overruling of a special demurrer which attacks the petition because a contract is not attached thereto as an exhibit, if error, is generally harmless where the contract is introduced into evidence and every fact which the defendant contends would have been revealed had a copy of the contract been attached to the petition is fully shown to the court and jury.
3. Grounds of demurrer which criticize clear and explicit allegations on the ground that such allegations are confusing have no merit.
4. Where a count is held subject to general demurrer, special demurrers directed to some of its allegations need not be considered.
5. The rule is well established that where there is no plea of misjoinder, the question of whether all of the parties jointly liable are named defendant in the suit cannot be raised for the first time by motion for a new trial.
6. A motion for new trial complaining of the admission of evidence should show a valid reason for excluding it.
7. Where an excerpt from a charge isolated from its context appears to be confusing, but, when construed with the remainder of the charge, is plain and explicit, a ground of a motion for new trial that segregates the excerpt from the whole charge and attacks it as misleading or confusing is without merit.
8. A ground of a motion for new trial which alleges that a charge is not sound as an abstract principle is without merit where the charge instructs the jury concerning a correct and sound principle of law material to the issues of the case.
9. A charge which does not more than fairly submit to the jury the question as to whether a particular contention of one of the parties is true, does not express an intimation or opinion of the court.
10. A charge explicit in its language and constituting a correct statement of the law cannot be held confusing, erroneous or unsound as an abstract principle of law.
James Maddox and J. D. Maddox, a partnership, doing business as Maddox & Maddox, Attorneys, brought a suit against Graham Glover in the Superior Court of Floyd County. The petition alleged in part: Count 1. That at all times mentioned herein and at the present time, the plaintiffs were and are duly licensed practicing attorneys under the laws of the State of Georgia, and the defendant, Graham Glover, is also an attorney at law duly licensed under the laws of Georgia; that during the month of May, 1955, the defendant entered into a written contract with one C. H. Hollingsworth, Jr., and Melvin Owens to represent the individuals in bringing a petition to recover certain fees and emoluments of the offices of Ordinary of Floyd County, Georgia, and Clerk of the Superior Court of Floyd County, Georgia, respectively, said contract providing that the proposed litigation should be on a contingent basis of fifty percent (50%)
550 GLOVER v. MADDOX (98 Ga.
of any moneys or amounts recovered; that upon information and belief, the plaintiffs show that the contract contemplated the association of certain other attorneys, to wit: the law firm of Harris & Harris and Maddox & Maddox, as well as Gary Hamilton, to assist in preparing and conducting the litigation and all other matters pertaining thereto; the plaintiffs were not a party to the original contract and do not have possession of the same; that subsequently to the date of the contract, the defendant approached petitioners and requested them to become associated in the cases to be brought in the names of C. H. Hollingsworth, Jr., and Melvin Owens, and the plaintiffs agreed to become associated and were associated therein as associate counsel, and assisted in the preparation, various trials, appeals, and other matters pertaining to the litigation, as will be more fully hereinafter set forth; the law firm of Harris & Harris and Attorney Gary Hamilton were also associated in the cases, and upon information and belief the last named attorneys entered into an agreement with the defendant that they should be compensated for their services, in the event of recovery, in the amount of five thousand ($5,000) dollars each, and that they were so compensated at the successful conclusion of the litigation; that at the time the plaintiffs were associated in the cases and throughout the trial of the litigation and until the same was finally settled and concluded, the plaintiffs and the defendant never discussed or agreed upon any basis for the remuneration of the plaintiffs; that pursuant to the contract of employment the plaintiffs did, in May 1955, together with the other counsel in the case and the parties involved, hold a conference at which it was determined to first request the Board of Roads and Revenue of Floyd County, Georgia, to bring a suit for declaratory judgment to determine the constitutionality of the act of the General Assembly purporting to place Hollingsworth as Ordinary of Floyd County, and Melvin Owens, as Clerk of Superior Court of Floyd County (at the time the fees and emoluments involved in litigation accrued) on a salary basis; such request was made upon the board and refused; that upon the refusal of the board to bring the suit for declaratory judgment, counsel for Owens and Hollingsworth did, on June 18, 1955, file a petition for declaratory judgment; the same being No. 6578, to the July term 1955, of Floyd Superior Court, the plaintiffs preparing the petition, and as a result thereof, the act of 1950 (Ga. L. 1950, p. 2389 et seq.) which purported to place Hollingsworth and Owens upon a salary basis was declared unconstitutional, null and void; that the plaintiff, James Maddox, personally argued the petition before the trial judge, Hon. M. G. Hicks, and from his judgment declaring the act unconstitutional the defendant therein took an appeal to the Supreme Court of Georgia, and the plaintiffs prepared and filed the briefs therein, in cooperation with Harris & Harris, attorneys, and the decision of the lower court was affirmed; in addition thereto, the plaintiffs and the firm of Harris & Harris filed a supplemental brief and the plaintiffs, James Maddox, and Alec Harris argued the case orally before the Supreme Court of Georgia; that following the decision of the Supreme Court, the plaintiffs and other counsel for Hollingsworth and Owens held a conference at which it was determined to make written demand upon the county for the payment to Owens and Hollingsworth of the fees collected and paid into the county treasury under the aforesaid unconstitutional act, and such demand was prepared and filed with the board, and payment thereon refused; that subsequently to the refusal of payment upon the demand, the plaintiffs herein, together with other counsel in the case, prepared and filed a petition for mandamus on December 15, 1955, against the Hon. C. O. Walden, Treasurer of Floyd County, and the board of roads and revenue; the plaintiff, James Maddox, and the Honorable Alec Harris argued the demurrers filed by the defendants and the petition was withdrawn, without prejudice on December 21, 1955; that thereafter, on February 3, 1956, the plaintiffs assisted in the preparation and filing on behalf of H. C. Hollingsworth, Jr., the same being 6948, of a petition against Floyd County in the Superior Court of Floyd County to recover the fees collected by C. H. Hollingsworth, Jr., as ordinary, and paid under the unconstitutional act into the treasury of Floyd County, and prepared a petition on behalf of Melvin Owens against Floyd County, Georgia, to recover the fees collected by Owens as Clerk of the Superior Court of Floyd County and paid into the treasury of Floyd
552 GLOVER v. MADDOX. (98 Ga.
County, Georgia, under the aforesaid unconstitutional act; that thereafter various demurrers and pleas were filed to the petition, and the plaintiffs, with the assistance of other counsel in the cases, prepared and filed various amendments to the petition; in addition thereto, the plaintiffs attended and orally argued before the trial judge the demurrers and pleas, as well as filing written briefs in support of the petitions; after the arguments upon the demurrers and pleas, the trial judge sustained the demurrers, and the plaintiffs prepared and filed the bills of exceptions therein, took the appropriate orders thereon, obtained the acknowledgements of service and other necessary formalities required to carry the cases upon appeal to the Court of Appeals of Georgia; the plaintiffs prepared and filed, with the assistance of other counsel in the cases, the written briefs in support of their client's claims, and the plaintiff, James Maddox, personally appeared before said court, and together with Alec Harris, orally argued the cases before the appellate court; as a result thereof, the Court of Appeals reversed the rulings of the trial judge and the cases were remanded to the trial court for trial; that on January 29, 1957, the case of Melvin Owens v. Floyd County, No. 6947, was tried before a jury; the plaintiff, James Maddox, conducted the plaintiff's case, and at the conclusion of the testimony in the case, made a motion for a directed verdict in the amount sued for; the motion was denied and thereafter the jury returned a verdict against the plaintiff; thereafter, the plaintiffs, with the assistance of the other counsel in the case, prepared a written motion for a judgment notwithstanding the verdict and a motion for new trial, and prepared amendments to the motions, and the trial judge, after hearing, overruled the motions and denied a new trial; whereupon the plaintiffs prepared and filed a bill of exceptions, obtained the necessary acknowledgments of service thereon and perfected the other legal formalities necessary to carry the case to the Court of Appeals of Georgia, where the same was placed upon the calendar for argument by brief and orally, the plaintiffs, together with other counsel, prepared written briefs and filed the same in the case, and the plaintiff, James Maddox, and Alec Harris appeared before the court and orally argued the same; as a result of said appeal, the Court of Appeals of Georgia reversed the decision of the lower court, holding in favor of the plaintiff, Melvin Owens, and directed that a judgment notwithstanding the verdict be entered in favor of the plaintiff; after the decision, the defendant in the case filed a motion for a rehearing which was denied, and before the remittitur in the case had reached the trial court, the defendant in the case filed a petition for certiorari to the Supreme Court of Georgia; Alec Harris and Gary Hamilton prepared and filed a written brief in opposition to said petition, and thereafter J. D. Maddox prepared and filed, an exhaustive supplemental brief, and the Supreme Court of Georgia, upon hearing, denied the certiorari, which resulted in a successful termination of the case in favor of the plaintiff, and, upon the remittitur being returned to the lower court, a judgment thereon in the amount of $64,833.31, principal, with interest at seven percent from July 16, 1955, to date of the judgment in the amount of $9,790.15 together with costs of court in the amount of $110.75, was entered on September 12, 1957; that on the 12th day of September, 1957, Floyd County issued its warrant in payment of the judgment in the amount of $74,673.46, payable to Melvin Owens; that the warrant was in turn delivered by James Maddox to Melvin Owens, who in turn issued his check for fifty percent of the sum, $37,336.73 to the defendant; that on January 30, 1957, the case of C. H. Hollingsworth, Jr. v. Floyd County was tried before a jury in said county, and the plaintiff, James Maddox, conducted the trial of the case with the assistance of Gary Hamilton, and that at the conclusion of the testimony a motion for directed verdict was made by counsel for the plaintiff therein and denied; thereafter, the same motions were made and procedural steps in the case, similar appeals, briefs and other legal remedies were taken as were taken in the Owens case, and the matter finally successfully concluded upon a denial of a petition for certiorari by the Supreme Court of Georgia and a judgment upon the remittitur in said case in favor of the plaintiff Hollingsworth in the amount of $4,750.78 with interest at seven percent from July 16, 1955, to date in the amount of $716.84, together with costs of court in the amount of $115.50 was entered in the case on September
554 GLOVER v. MADDOX. (98 Ga.
12, 1957; that on September 12, 1957, Floyd County, the defendant in the case, issued its warrant in the total sum of $5,467.62, payable to C. H. Hollingsworth, Jr., which warrant was delivered by the plaintiff, James Maddox, to C. H. Hollingsworth, Jr., who endorsed the same, and the said James Maddox delivered to C. H. Hollingsworth, Jr., a check for fifty percent of said amount, and the plaintiffs still hold and have applied to their fee in the two cases the fifty percent represented by said check in the amount of $2,733.56; before paying fifty percent of the proceeds of said Hollingsworth check to the said Hollingsworth, the plaintiffs contacted associate counsel Gary Hamilton and Harris & Harris and were assured by them that they had no claim for fees upon said check; that following the delivery of the county warrant to Melvin Owens, as aforesaid, the defendant on September 12, 1957, tendered to the plaintiff, James Maddox, a check dated 9/12/1957 in the amount of $5,000 payable to the order of Maddox & Maddox and signed by the defendant, whereupon said plaintiff refused to accept the same and told the defendant that said check was not satisfactory, was not in accordance with the implied agreement for the division of fees in said case, and returned the check to the defendant; the following day plaintiffs received through the United States mail the same check which had been previously tendered, and later, on the following day, the plaintiffs deposited said check in the Rome Bank & Trust Company and wrote the letter attached hereto as Exhibit A to the defendant; later on September 17th, the plaintiffs were notified that payment on said check had been stopped, and said check has never been paid; the plaintiffs show that as a result of their skill, diligence and work applied in the aforesaid cases, a total recovery in the amount of $80,143.08 in favor of the plaintiff was obtained, and under the law and the facts as stated above the plaintiffs were in fact and in law joint adventurers and copartners with defendant, Harris & Harris and Gary Hamilton in the handling of said litigation and were and are entitled to one-fourth of $40,071.54, or a total of $10,017.63, and have received in payment of said sum only the amount of $2,733.56, leaving a balance due them of $7,284.07, for which they sue; demand has been made upon the defendant for said sum and he has refused the same and has converted said sum to his own use and illegally withholds the same from the plaintiffs.
Count 2. The plaintiffs adopt by reference the allegations of paragraphs 1 through 24 of count 1 of this petition; they further allege that throughout the course of said litigation and to its final conclusion and the payments of the sums alleged in count 1, the plaintiffs did overwhelmingly the majority of the work, out of all proportion to the amount of skill, labor and time consumed by the defendant in the preparation, trial and appeal of said cases, and upon a quantum meruit basis their services were reasonably worth and they are entitled for same the amount of $10,017.63, upon which they have been paid only the sum of $2,733.56, leaving a balance due them of $7,284.07; the plaintiffs show that James Maddox is a licensed practitioner of the law, admitted to practice in the superior courts and appellate courts of Georgia, in the Federal Court of the Northern District of Georgia, the Circuit Court of Appeals, and has had a total of 45 years of active practice, involving criminal and civil cases, and from the year 1925 through January 1, 1935, served as Judge of the Superior Court of the Rome Circuit; that J. D. Maddox has practiced law in the State of Georgia for a period of ten years and is admitted to practice in the various appellate courts of the State, the Federal Court of the Northern District of Georgia, the Circuit Court of Appeals, and the United States Supreme Court, and during his ten years of practice has successfully handled criminal and civil cases.
The defendants demurred generally to count 2 of the petition, specially to certain allegations of count 1, and filed an answer. The judge overruled the demurrers to both counts, and the defendant excepts. The answer denied the allegations of the petition and pleaded that there was an express oral contract as to the division of fees; that under the terms of the contract the plaintiffs agreed to accept $5,000 as full compensation for their share of the fees earned in the case. The answer further alleged that the $5,000 was tendered the plaintiffs and refused.
The contract between clients, C. H. Hollingsworth, Jr., and Melvin Owens was introduced as evidence. It read:
"State of Georgia, Floyd County.
"We, C. H. Hollingsworth, Jr., Joe Adams, Melvin Owens and J. W. Winkle, Jr., have this day employed the firm of Wright and Glover, attorneys at law, Rome, Georgia, to represent us in determining the validity of the act of the legislature of the State of Georgia, approved February 14, 1950, whereby we were put on a salary system of compensation in our respective offices, and taken off the fee system of compensation in our respective offices.
"It is hereby agreed by the undersigned that if the said firm is successful in having said act declared unconstitutional and invalid; and monies which we do recover that has been turned over to the proper officials of Floyd County under the terms of said act, or that is in the hands of Floyd County, Georgia, or the proper officials thereof, as a result of said ruling we hereby agree to compensate said firm by now contracting to give to said firm fifty (50) percent of any such monies or amounts recovered. This contract applies only to the amounts turned over to the proper county officials, up to the filing of any suit, by the offices which we represent.
"The firm of Wright and Glover hereby agree that our representation of the undersigned is on a purely contingent basis, and if no monies are recovered by said representation we are entitled to no compensation. We further agree to associate or attempt to associate three other firms or lawyers with us in this connection, to wit: Harris & Harris, Maddox & Maddox, and Gary Hamilton.
It will be noted that the contract was not with the defendant, but was between Hollingsworth and Owens, the clients, and the firm of Wright & Glover.
The jury returned a verdict for the plaintiffs. The defendant filed a motion for new trial, amended it by adding special grounds, excepted when the amended motion was denied and brought the case here for review.
QUILLIAN, Judge. 1. The defendant's general demurrer is directed only against the second count of the petition which undertakes to set up the plaintiffs' right to recover quantum meruit. "Lawyers jointly undertaking to represent a client without a contract as to the division of fees share equally." 5 Am. Jur. 386, 207. This is generally recognized and followed in most jurisdictions. We think it prevails in Georgia and must be applied in the instant case.
When the evidence, direct or circumstantial, shows there was an express or implied contract among lawyers associated in the representation of a client the parties to the contract are bound by its terms.
While the lawyers associated in representing a client on a contingent basis, that is, where their compensation is dependent upon the success of the litigation undertaken, are benefited by the services of each, their services are rendered under the contract of employment to and for the benefit of their mutual client. The services rendered in carrying out that contract are not, within the meaning of Code 3-105 to or for the benefit each of the other. Hence there can be no recovery on the basis of quantum meruit. Gainesville Limestone Co. v. Robertson, 28 Ga. App. 805 (113 S. E. 98).
We are therefore of the opinion that Count 1 of the petition set forth a cause of action and Count 2 alleged no right of recovery.
This is not a pronouncement that a lawyer may not recover against his associate in some form of assumpsit, as for instance by an action for money had and received, a fair share of the fees earned and owned by them jointly.
2. Grounds 3 and 4 of the special demurrer question the sufficiently of certain paragraphs of count 1, because a copy of the contract of employment alleged to have been entered into by the defendant with the clients by whom he was employed was not attached. The petition alleges the plaintiff was not a party to the contract and that it is in the defendant's possession. In these circumstances it was not necessary to attach a copy of the same. Farr v. McCook, 95 Ga. App. 749
, 751 (98 S. E. 2d 584). Moreover, the contract was introduced as evidence and every fact that the defendant contends would have been revealed had a copy of file document been attached to the petition was fully shown to the court and jury.
The court's ruling was right and resulted in no harm to the defendant.
3. Special grounds 6, 7, 12 and 13 of the demurrer criticize a certain clear and explicit allegation contained in several paragraphs of count 1 as confusing, hence are without merit.
4. Special demurrers directed to count 2 of the petition need not be considered inasmuch as the count is held subject to general demurrer.
5. The first count of the petition alleged that the plaintiffs and defendant were associated in a case, that certain fees were earned through their joint efforts, and that there was no agreement between the parties as to the division of the fees, hence the plaintiffs were, under the usual custom of lawyers, entitled to share the fees equally with the defendant.
The answer denied the allegations of the petition and pleaded that there was an express oral contract as to the division of fees; that under the terms of the contract the plaintiffs agreed to accept $5,000 as full compensation for their share of the fees earned in the case. The answer further alleged that the $5,000 was tendered the plaintiffs and refused.
We consider the only general ground of the motion for new trial insisted upon in this court. It is that the verdict was without evidence to support it.
The defendant not only challenged the sufficiency of the evidence to prove the case as laid in counts 1 of the petition (count 2 we have held set forth no cause of action) but points out technical reasons for his position that the evidence did not authorize a recovery.
He asserts that the evidence showed the contract of employment was with the defendant's firm, Wright & Glover, but stipulated other lawyers, Harris & Harris, Maddox & Maddox, and Gary Hamilton were to be associated in representing the clients; that, since the contract of employment was between the clients and the defendant's firm and with him individually, first, his partner, Mr. Graham Wright, was a necessary party defendant; secondly, that he or his partner, even if the plaintiff's contention that there was no agreement as to the division of fees be accepted as true, were entitled to share in the fees individually and not as a unit, hence, were entitled to receive one-half of fees earned by all of the lawyers associated in the case, and the plaintiffs were entitled to receive only one-eighth part of all fees.
The latter contention is not sound. A firm of lawyers associated with other lawyers in handling a case, share in the fees as a unit and not individually, unless there be an agreement to the contrary.
We will now discuss the matter of nonjoinder of Mr. Graham Wright, the defendant's partner.
Where an individual is sued and the evidence adduced upon the trial shows that if there be liability as that of a partnership a motion for nonsuit is in order (Myers v. Hook, 11 Ga. App. 517 (3)
, 75 S. E. 833), but not a motion for directed verdict. This is true because in the absence of a plea of misjoinder the case goes to trial on its merits, and the court is not, unless such plea is filed, concerned with the question of whether all the parties jointly liable are named as defendant to the action. Bray v. Peace, 131 Ga. 637
(62 S. E. 1025). The rule does and apply where there is failure to name a joint defendant, leaving the court without jurisdiction of the cause (Sowell v. Sowell, 212 Ga. 351
, 92 S. E. 2d 524), and perhaps it is applicable in some instances to cases arising under the negotiable instrument act.
The rule is well established that where there is no plea of misjoinder, the question of whether all of the parties jointly liable are named defendant in the suit cannot be raised for the first time by motion for a new trial. McCloud v. Franklin, 70 Ga. App. 859 (3) (29 S. E. 2d 651); Greenwood v. Starr, 174 Ga. 503 (2) (163 S. E. 500).
The first count alleged that the defendant, not the defendant's partner, associated the plaintiffs in the case, and that the defendant withheld from the plaintiffs their fair share of the fees earned by and owned by them. Here the case of Manning v. Gettys, 48 Ga. App. 203 (3) (172 S. E. 571) should be considered. This case holds that when the goods of another are converted by a partner and delivered to the partnership, the third person may elect to sue the offending partner individually or the partnership.
The evidence is voluminous and it would serve no purpose to set it out in detail. It is sufficient to say that the plaintiff's proof amply supported the case as pleaded in count 1 of the petition. The defendant's evidence contradicted that of the plaintiffs, but did not conclusively disprove the plaintiffs' right of recovery on the theory upon which count 1 of the petition was based.
6. Ground 1 of the amended motion for new trial complains of the admission of evidence not because it was inadmissible as a matter of substance, but because of the manner and form in which it was offered. The objections interposed do not show any valid reason for excluding the evidence. Moreover, the objections did not apply to all of the evidence. However, since the evidence may not be submitted in the same manner and form on another trial of the case, discussion of the ground's merit or sufficiency is unnecessary.
7. Ground 2 of the amended motion excepts to an excerpt from the charge because it is confusing. The excerpt isolated from its context is perhaps subject to the criticism made of it, but when construed with the remainder of the charge is plain and explicit. A full discussion of the ground is unnecessary since the charge complained of will probably not be given in the same form upon another trial of the case.
8. Grounds 3 and 4 of the amended motion for new trial complain that two charges of the same legal import were given the jury. Each charge was excepted to as being "erroneous and not sound as an abstract principle of law." The charges referred to were: "Gentlemen, I charge you that where an attorney or attorneys retained on a contingent fee basis to prosecute a claim -- that is to say, to handle a civil case -- engages another lawyer or lawyers to assist in the litigation, and they are to share such fees, if successful and, if not successful, to receive nothing for services, the relationship established between them is that of joint adventurers, or special partners and, in the absence of any agreement, they will be held, upon the successful result of the suit to share equally in the distribution of fees."
"In this connection, gentlemen, I charge you that, if you should find that the defendant, or the law partnership of which he is a member, obtained from Mr. Hollingsworth and Mr. Owens a contract whereby defendant or defendant's law firm was employed by the said Hollingsworth and Owens to prosecute their claim against Floyd County on a contingent fee basis; that is to say that, if the prosecution of the case was not successful the attorneys would receive no compensation, and, if it was successful they would receive fifty percent, or some other percentage of the sum collected. And, that after receiving said contract from the said Hollingsworth and Owens, the defendant, without making any agreement or contract with the plaintiff as to the division of fees between the defendant and plaintiff that is to say, reached no agreement as to any specific amount that would be paid by the defendant to plaintiff, then I charge you that there was an implied contract under these circumstances, that the defendant would share equally with the other attorneys associated in said case, other than those with whom he had a specific agreement as to the amount to be paid to them upon the successful conclusion of the case."
We are of the opinion that the charges instructed the jury concerning a correct and sound principle of law material to the issues of the case. Langdon v. Kennedy, 63 A.L.R. 896; Underwood v. Overstreet, 10 A.L.R. 1352; Code 75-206.
9. The fourth ground of the motion also alleges that the latter of the quoted charges expressed an opinion as to what had been proved.
"I charge you further, Gentlemen, that where one member of a copartnership converts to its own use personal property of a third person, the owner of such property so converted has a right of action at his option, either against the copartnership or against the individual partner guilty of such act of conversion to recover the property so converted, or its proved value."
The criticism of this charge is that it is confusing, misleading and not authorized by the evidence adduced upon the trial. The charge is plain and explicit.
The petition alleged that the plaintiffs and the defendant were associated in handling certain litigation and by their combined efforts earned certain fees; the defendant collected the fees and refused to pay over to the plaintiffs their fair share of the same.
One of the plaintiffs, James Maddox, testified that the facts alleged were true. The defendant offered evidence to the contrary.
The charge was a sound statement of the law. Manning v. Gettys, 48 Ga. App. 203, 204, supra. Accordingly the charge merely submitted to the jury an issue made by the pleadings and authorized by the evidence. It contained no intimation of opinion that evidence of any fact had been submitted.
The judge erred in overruling the general demurrer to count 2 and was correct in overruling the special demurrers to count 1 and the amended motion for a new trial. The erroneous overruling of the general demurrer to count 2 of the petition rendered further proceedings nugatory. The rulings by this court on the further proceedings under the new rules are only for the purpose of guiding the trial court on another trial. The judgments of this court are rendered with the direction that the case be tried again on count 1 of the petition under the rulings on matters occurring since the erroneous ruling on the demurrer to count 2.