1. By reason of the provisions of Code (Ann. Supp.) 81-1001, the exceptions pendente lite to the sustaining of the defendant's demurrers to the petition are not subject to review by this court where, under the order sustaining the demurrers, time was allowed within which to amend. Weinstein v. Rothberg, 87 Ga. App. 94 (1)
(73 S. E. 2d 106).
2.(a) Where a special demurrer to a specified portion of a petition is sustained with leave to amend, a failure to amend to supply the information called for by the special demurrer will not in and of itself result in the specified portion of the petition being stricken. To have such a result, it must appear that the allegations of the specified portion are bad in themselves or are so without the information called for being added.
(b) The trial court in this case did not err in its denial of the motion to dismiss the petition, as the deficiencies pointed out by the special demurrers did not relate to the entire cause of action, and the trial court had made no ruling on the general demurrers.
(c) Counts 1 and 2 each stated a cause of action, as against general demurrer, and the trial court erred in sustaining those demurrers.
3. For the reasons stated in the opinion the trial court erred in overruling the demurrers to the plea in bar.
On July 25, 1952, Jesse M. Sellers brought an action in two counts against the City of Summerville. The material allegations of count 1 are substantially as follows: 1. During March, 1946, the plaintiff was employed as an attorney at law by the defendant, a municipal corporation, acting within its charter powers and by and through its mayor and council. 2. The purpose of such employment was to secure the plaintiff's services to seek to obtain annual revenue to the defendant from the use of its streets for the distribution of electricity. 3. Georgia Railway & Power Company and its successor, Georgia Power Company, had occupied the streets of the defendant for the distribution of electricity since June 13, 1924, under a franchise ordinance then granted by the defendant, without paying or offering to pay the defendant for such use of its streets. 4. Subsequently to many conferences between the plaintiff and J. J. McDonough, vice-president of Georgia Power Company, which conferences covered a period of some seven months, the defendant, through its mayor and council, on October 14, 1946, authorized and directed the plaintiff to institute suit against Georgia Power Company relative to the said franchise. 5. The plaintiff filed a petition on behalf of the defendant in the Superior Court of Chattooga County against Georgia Power Company for a declaratory judgment, which petition prayed that the said franchise be declared void from the beginning because, as alleged therein, the charter provision of the City of Summerville was not complied with as to publication of notice of the intention to grant the franchise, and because, as alleged and contended, the said franchise was an exclusive and perpetual one. The petition was filed, after having been duly verified by the mayor and council October 16, 1946. The answer and other defensive pleadings were filed by Georgia Power Company on November 11, 1946. 6. The said petition was dismissed on demurrer and plea to the jurisdiction of the Superior Court of Chattooga County, filed by Georgia Power Company. 7. Subsequently to the dismissal of the aforementioned petition on final appeal, the plaintiff filed in the Superior Court of Fulton County, a petition for a declaratory judgment against Georgia Power Company, which petition contained the same allegations relative to the invalidity of the said franchise as had the earlier petition filed in the Superior Court of Chattooga County. This latter petition was also duly verified by the mayor and council of the defendant. 8. Georgia Power Company filed defensive pleadings to this latter petition. The court dismissed the petition on general demurrer, and that ruling was, on appeal, sustained by the Court of Appeals, which held in substance that the City of Summerville did not allege positively that it would make use of the streets for the business of distributing electricity. 9. While the declaratory-judgment case was pending in the Court of Appeals, the City of Summerville instituted an equitable suit by its mayor and council against Georgia Power Company, based on the identical grounds set forth in the declaratory-judgment case. Besides praying equitable relief, the petition alleged that Georgia Power Company was a continuing trespasser, and sought to recover $80,000 against it as such trespasser. The plaintiff prepared that petition, prosecuted that case twice through the Superior Court of Fulton County, and twice through the Supreme Court of Georgia, with Georgia
Power Company defending against the suit. Although the judgments of the courts were against the contentions made in the petition, the Supreme Court held that the franchise was neither an exclusive one nor did it grant a perpetual right to Georgia Power Company, as contended by the City of Summerville. This contention was alleged because of the construction placed on the franchise as shown by a recital in the minutes of the mayor and council at a regular meeting in February, 1940, at which meeting a representative of Georgia Power Company was present, to the effect that the franchise did grant to Georgia Power Company free use of the streets perpetually, and that such use so granted was an exclusive right. 10. The franchise litigation ended on October 13, 1949. Subsequently to the conclusion of said litigation, to wit, on December 15, 1949, the defendant entered into a contract with Georgia Power Company, whereby Georgia Power Company is bound to pay to the defendant "a sum equal to 3 percent of the gross receipts from sale of electric energy for domestic and for commercial purposes . . . delivered to customers within the corporate limits of the City of Summerville during the preceding year," so long as Georgia Power Company has the exclusive right to use the streets of the defendant for the distribution of electricity. 11. The contentions of the parties, City of Summerville and Georgia Power Company, involved new and momentous questions. The contentions of the City of Summerville were vigorously opposed by the general counsel of Atlanta and the division counsel of Rome for Georgia Power Company. During a period of nearly four years of continuous service the plaintiff performed the following services: (a) Prepared and filed three original petitions. (b) Prepared and filed three demurrers to the answers to said petitions by the Georgia Power Company. (c) Prepared and filed four bills of exceptions to appellate courts. (d) Prepared and filed twelve briefs to appellate courts. (e) Prepared and filed two certiorari petitions from the Court of Appeals to the Supreme Court of Georgia. (f) Conducted four hearings on behalf of the defendant in trial courts. (g) Made five oral arguments in the appellate courts, and in addition he held numerous conferences with officials and attorneys of Georgia Power Company, seeking a satisfactory settlement of the franchise question for the defendant. 12. Upon written demand for compensation for the reasonable value of his services, the defendant has failed and refused to pay the plaintiff for his services rendered in the franchise matter. 13. The defendant did advance to the plaintiff $1,500 "on fee" during the period of his services and while the franchise question was being litigated; but the plaintiff alleges that the reasonable amount presently due him for the value of his services is $28,500, for which he sues and prays verdict and judgment. 14. The present officials of the defendant are W. G. Tallant, mayor, R. L. Guffin, N. T. Brown, Roy Alexander, and Fred Medders, councilmen.
The allegations of count 2 are practically identical with those of count 1, except that in paragraph 13 of count 2 it is alleged that, subsequently to the filing of said petition against Georgia Power Company, said company offered to contract to pay the City of Summerville the 3 percent gross as stated in paragraph 10, it being alleged that such payments were to have their beginning in 1947, as may be shown by the minutes of the defendant. The defendant failed and refused then to accept the offer of the 3 percent and directed the plaintiff to continue to prosecute the litigation. In paragraph 14 of count 2, it is alleged that the contract which the defendant has with Georgia Power Company, referred to in paragraph 10, is worth and is of the value of $120,000, and the plaintiff's services have thus enriched the defendant, and until he is duly and reasonably compensated for his services such enrichment of the defendant is unjust.
The defendant filed general and numerous special demurrers to the petition, together with a special plea in bar. The trial court on December 3, 1952, overruled certain of the demurrers and sustained certain of the demurrers to each of the two counts of the petition, and allowed the plaintiff until December 15, 1952, to amend. To this ruling the plaintiff filed exceptions pendente lite to so much of the judgment as sustained demurrers to his two counts, and he assigns error on the exceptions pendente lite in his final bill of exceptions.
In the defendant's special plea in bar, it is alleged that on January 2, 1951, the plaintiff in this case filed suit against the defendant in this case, in the Superior Court of Chattooga County, seeking a judgment for $22,500 for services claimed to have been rendered by the plaintiff as attorney at law for the defendant, which are the identical services for which he seeks recovery in the present suit. Thereafter the defendant filed its demurrers to that petition, both general and special, and upon a hearing the trial court entered a judgment sustaining the demurrers. Thereafter the plaintiff sued out a writ of error to the Supreme Court of Georgia, and that court sustained the judgment of the trial court. Under the laws of the State of Georgia, the plaintiff could and should have set up in that proceeding the claims set forth in the present suit, and the judgment in that proceeding is a full, complete, and final adjudication of the cause of action now sued on, and for that reason the cause is forever barred. While all the pleadings in that proceeding are attached to and made a part of the plea in bar, they are also to be found set forth in Sellers v. City of Summerville, 208 Ga. 361
(67 S. E. 2d 137), and will not be repeated here.
The plaintiff's demurrers to the plea in bar were overruled, and he excepted pendente lite to such ruling and assigns error thereon in his final bill of exceptions.
On December 16, 1952, as the plaintiff had failed and refused to amend his petition to meet the demurrers sustained against it, the defendant filed its motion to dismiss the petition. The trial court denied that motion, and the defendant excepted pendente lite and assigned error thereon in its cross-bill of exceptions.
On December 18, 1952, the trial court entered an order that, since no amendments had been filed by the plaintiff in compliance with the court's order of December 3, 1952, and upon further consideration of the demurrer, the general demurrers to the two counts were sustained and the petition was dismissed. The plaintiff also assigns error upon this judgment.
1. Headnote 1 is self-explanatory and requires no elaboration.
2. The judgment on December 3, 1952, in which the plaintiff was allowed until December 15, 1952, within which to amend, contained no ruling on the general demurrers, but ruled solely on special demurrers. The plaintiff did not amend within the time allowed. It is provided in Code (Ann. Supp.) 81-1001, as amended by the act of 1952 (Ga. L. 1952, pp. 243, 245), that "the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment." In compliance with that section of the Code, the trial court on December 18, 1952, entered a judgment on the sufficiency of the pleadings by sustaining the general demurrers to both counts of the petition and dismissing the petition. The plaintiff contests the validity of that judgment. To resolve the question, certain ancillary questions must be disposed of.
(a) "Where a special demurrer to a petition is sustained, with leave to amend, and there is a failure to do so, the petition should be dismissed if the delinquency relates to the entire cause of action. But if the demurrer goes only to some particular part of the petition, without which a valid cause of action would still be set forth, the proper judgment is to strike the defective portion, and not dismiss the entire action. White v. Little, 139 Ga. 522 (3) (77 S. E. 646); Beermann v. Economy Laundry Co., 153 Ga. 21, 22 (111 S. E. 399); McSwain v. Edge, 6 Ga. App. 9, 11 (64 S. E. 116); Elliot v. Orange Crush Bottling Co., 56 Ga. App. 313, 315 (192 S. E. 530)." Cheatham v. Palmer, 191 Ga. 617 (5) (13 S. E. 2d 674). In White v. Little, supra, it was held: "If a special demurrer is urged to a petition, or other pleading, already of file, attacking only certain parts of it, and is sustained, the result is to eliminate the parts so held bad." Where a special demurrer to a specified paragraph of a petition, calling for additional information, is sustained with leave to amend, a failure to amend will not in and of itself result in such specified paragraph being stricken from the petition. To have such a result, it must appear that the allegation, or allegations, of the specified paragraph is, or are, bad; that is, that such allegation, or allegations, has, or have, no place in the petition; or that, without the information called for being supplied, such allegation, or allegations, has, or have, no place in the petition. Elliot v. Orange Crush Bottling Co., supra; Watts v. Rich, 49 Ga. App. 334, 337 (2c) (175 S. E. 417); Moseley v. Equitable Life Assurance Society, 49 Ga. App. 424 (3) (176 S. E. 87). None of the information called for by those of the special demurrers which were sustained was absolutely essential to a statement of a cause of action by the plaintiff, and the plaintiff's failure to amend to supply the information desired did not result in those paragraphs under attack for that reason being stricken from the petition.
(b) In view of what has been held in the foregoing subdivision, the trial court did not err in refusing the defendant's motion to dismiss the petition for the failure of the plaintiff to amend to meet the special demurrers, as the deficiencies pointed out by the special demurrers did not relate to the entire cause of action, and the trial court at the time of the motion (December 16, 1952) had not reconsidered the sufficiency of the pleadings after the time for amendment had expired, as required by Code 81-1001 or made any ruling on the general demurrers.
(c) As against general demurrer each of the two counts of the petition stated a cause of action.
The allegations of counts 1 and 2 are, essentially, that the defendant hired the plaintiff as its attorney at law; that the plaintiff performed certain enumerated services as such attorney, which services were accepted by the defendant; that such services were of a stated reasonable value and the defendant refuses to pay therefor; that, as a result of the plaintiff's efforts and services which were accepted by the defendant, it has become enriched in a stated sum; and that, until the defendant pays the plaintiff the reasonable value of his services which produced such enrichment, such enrichment is unjust. These allegations were sufficient to state a cause of action in court 1 for quantum meruit ( Upchurch v. Maynard, 39 Ga. App. 332, 147 S. E. 139, and citations), and sufficient to state a cause of action in count 2 for unjust enrichment ( Bass v. Cates, 74 Ga. App. 363, 368, 39 S. E. 2d 550, and citations). It follows, therefore, that the trial court erred in sustaining the general demurrers to counts 1 and 2.
3. "Where, due to incomplete or inexact performance, the plaintiff is precluded from recovering the contract price, but is in equity and good conscience entitled to compensation general assumpsit may lie. In some cases where the express contract has not been performed according to its terms, but the performance of plaintiff, in so far as it went, was of benefit to defendant, the law will allow a recovery in general assumpsit to compensate plaintiff for the partial or inexact performance. Similarly, plaintiff may recover upon the common counts, if that which has been done by him is beneficial to defendant, and has been accepted and enjoyed, or if his default has been waived. A benefit of that sort, if it is not a perfect compliance with what it is stipulated for, cannot be accepted and utilized without making reasonable compensation. Because something of value has been received and retained by one party to the contract, the law will not leave the other, who has contributed the valuable thing wholly without remedy on account of imperfect discharge of his duty. It will deny him a remedy on a contract whose terms he has failed to observe, but will give him as much compensation as is fairly merited by his performance as far as it went, to be measured by the reasonable value of the benefit accruing from it." 7 C. J. S. 115, 117, 9 (c) (2) (b) (cc). And the cause of action in assumpsit is distinct from the original contract. Harden v. Lang, 110 Ga. 392
(36 S. E. 100); Southern Ry. Co. v. Branch, 9 Ga. App. 310
(71 S. E. 696). The cause of action which the plaintiff pursued and was held not to be good in Sellers v. City of Summerville, 208 Ga. 361
(67 S. E. 2d 137), related to the special contract; and, being distinct from the present suit in assumpsit, is not res adjudicata of the present suit. Spence v. Erwin, 200 Ga. 672 (2)
(38 S. E. 2d 394). It follows that the trial court erred in overruling the plaintiff's demurrers to the plea in bar.
Judgment reversed on the main bill and affirmed on the cross-bill. Gardner, P. J., and Townsend, J., concur.