2. Code 81-105, as to setting out copies of contracts, obligations to pay, or other writings which constitute the cause of action, or the basis of the relief prayed for, applies only where the instrument sued on constitutes the cause of action, or the basis of the relief prayed for.
3. Where, in a suit upon a promissory note, payable in monthly instalments, it appears that there are several instalments past due at the time of instituting the suit, it is error to sustain a general demurrer to the petition.
4. Where in a petition brought on a quantum valebat, it appears from the allegations that there is an express agreement covering the same subject matter existing at the same time between the same parties, and it does not appear that such express agreement has been abandoned or rescinded, the plaintiff can not recover on a quantum valebat.
In an action brought by H. G. Ramsey, November 21, 1951, against Jack Langley, the material allegations of the petition were as follows: "3. Defendant is indebted to plaintiff in the principal amount of eight hundred fifty dollars ($850) plus interest thereon at eight (8) per centum from October 15, 1950, as shall be more particularly hereinafter set forth. 4. On the fifteenth day of September, 1948, defendant purchased an automobile from plaintiff and in part payment defendant gave plaintiff a promissory note for one thousand three hundred dollars ($1300), payable in instalments of fifty dollars ($50) per month, plus interest after maturity at eight per centum (8%). Defendant has made payments of four hundred fifty dollars ($450), leaving a balance of $850. 5. Defendant's last payment was made on October 15, 1950. 6. Plaintiff has often demanded and defendant has many times promised to pay the aforesaid balance but he has failed and continues to fail and now refuses to pay said note. Defendant likewise gave plaintiff a retention-of-title contract by which defendant agreed that title to said automobile remained in plaintiff until the aforesaid purchase price was fully paid. In spite of that, this defendant has wrongfully and fraudulently transferred, sold and delivered the aforesaid car to someone not known to this plaintiff, thereby depriving plaintiff of security. Wherefore, plaintiff prays . . . for judgment against defendant in the amount of eight hundred fifty dollars ($550) as balance of principal on said note plus interest at eight per centum (8%) from October 15, 1950, until paid, plus costs of court."
The defendant filed two special demurrers to the petition. The first of these was directed at paragraph 4 on the ground that the plaintiff had failed to attach a copy of the promissory note; and the second was directed at paragraph 7 for the failure to attach a copy of the retention-of-title contract.
The defendant renewed his original demurrers to the original petition and added the following additional demurrers: "2. Defendant demurs specially to paragraph 2 of plaintiff's amendment on the grounds that the petition fails to set forth whether the contract was in writing or if said contract was oral. 3. Defendant demurs specially to paragraph 3 of plaintiff's amendment on the grounds that the same sets forth on its face that the contract is not executed but executory. 4. Defendant demurs to paragraph 5 of plaintiff's amendment on the grounds that the same is contradictory to count one of plaintiff's original petition. 5. Defendant demurs specially to paragraph 6 of plaintiff's amendment on the grounds that the same sets forth two causes of action, one in contract for specific amount and the other in quantum meruit [quantum valebat?] for a reasonable value and that the same should be stricken and plaintiff should choose his cause of action."
Paragraphs 1 and 2 of the original demurrer were sustained, with leave to the plaintiff to amend within 20 days to meet the demurrers, otherwise paragraphs 4 and 7 of the original petition to stand stricken.
Paragraphs 2 and 3 of the additional demurrers were sustained; paragraphs 4 and 5 of those demurrers were overruled.
On the day on which the above demurrers were ruled upon the defendant interposed an oral motion to dismiss count 2 of the petition on the ground that it failed to set forth a cause of action. The court sustained the motion and allowed 20 days within which to amend.
The plaintiff filed exceptions pendente lite to each of the court's rulings indicated above and assigns error thereon in the direct bill of exceptions in this court.
After the expiration of the time allowed for amendment and upon the call of the case for trial, the court sustained a motion to dismiss the petition, and the plaintiff excepted.
1. Properly construed, count 1 of the petition clearly stated a cause of action for the unpaid balance due on the alleged promissory note. It is alleged that the defendant is indebted to the plaintiff in the sum of $850 plus interest thereon at eight percent from October 15, 1950, the date of the last payment made on the note, and the plaintiff in his prayer asks that interest at eight percent be awarded to him. Code 57-101 provides that any rate of interest higher than seven percent must be specified in writing. Obviously, if the plaintiff is to obtain interest at eight percent he must sue upon the note, the written instrument providing therefor. Treating count 1 as a suit upon the note, we are confronted then with the question of whether or not the court erred in sustaining the special demurrer requiring the plaintiff to attach a copy of the note to his petition. In Edwards v. Camp, 29 Ga. App. 556 (116 S. E. 210), it was held: "There is full compliance with the provisions of section 5541 of the Civil Code (1910) [Code, 81-105], requiring that a copy of the contract sued on be attached to or embodied in the petition, where the petition sets forth, as to each of the notes sued on, the date, amount, maturity, rate of interest, and date from which it runs, and attaches a specimen copy, with the further statement that each of the notes sued on is otherwise identical in form." In paragraph 4 of the petition it is alleged that the note was made by the defendant to the plaintiff on September 15, 1948, and is presumably bore that date; it is alleged that the note was in the original amount of $1300; it is alleged that the note is payable in monthly instalments of $50, and presumably each instalment matures on the day of the month on which it falls due; and it is alleged that the note is to bear interest at the rate of eight percent from maturity. These allegations make a sufficient statement of the substance of the note to constitute a compliance with the provisions of Code 81-105 and to render attaching a copy of the note unnecessary. Mercier v. Copelan, 73 Ga. 636 (3); Gibson v. Robinson, 90 Ga. 756 (1) (16 S. E. 969); Penn Tobacco Co. v. Leman, 109 Ga. 428 (34 S. E. 679); Dotson v. Savannah Pure Food Canning Co., 140 Ga. 161 (78 S. E. 801); Reed v. Colonial Hill Co., 34 Ga. App. 48 (128 S. E. 201). It follows that the trial court erred in sustaining the special demurrer to paragraph 4 of the first count of the petition on the ground that a copy of the note had not been attached to the petition.
2. Since count 1 of the petition is properly construed to constitute an action on the note and not upon the retention-of-title contract, it was unnecessary to attach a copy of that contract to the petition. East Atlanta Land Co. v. Mower, 138 Ga. 380 (2) (75 S. E. 418); Reed v. Colonial Hill Co., supra. The trial court, therefore, erred in sustaining the special demurrer to paragraph 7 of count 1.
3. "A suit upon a contract for purchase-money due by instalments may be maintained for the amount of such instalments as were due at the institution of the suit, but not for instalments to become due." McDonald v. Rimes, 137 Ga. 732 (74 S. E. 266); Martin v. McLain, 51 Ga. App. 336 (3) (180 S. E. 510). It appears from the allegations of count 1 that at the time of the institution of the suit on November 21, 1951, there were thirteen monthly payments pass due, the last payment on the note having been made on October 15, 1950, and it nowhere appearing that the entire amount of the note became due and payable upon the maker's failure to meet the monthly payments. A cause of action was stated in count 1 of the petition for the instalments which were past due and the trial court erred in sustaining the oral motion, in the nature of a general demurrer, to dismiss the petition.
4. As to count 2 of the petition, the trial court did not err in sustaining the oral motion to dismiss, in the nature of a general demurrer. There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise; and no agreement can be implied where there is an express one existing. While it is alleged in this count that the plaintiff sold the automobile for the sum of $1300, and delivered it on October 15, 1949, from which the law would ordinarily imply a promise to pay, nothing more appearing, it is also alleged that the defendant promised to pay for the automobile in monthly instalments of $50 each. As a matter of mathematical calculation the defendant under such agreement had 26 months within which to make the payments in the absence of an agreement that failure to make a monthly payment would cause the remaining instalments to become due and payable. There are no allegations of abandonment or rescission of this arrangement as to payments, nor allegations from which abandonment or rescission could be inferred; and with the express agreement as to the payment of the purchase price still outstanding the plaintiff cannot recover upon a quantum valebat. 12 Am. Jur., p. 505, 7; Baldwin v. Lessner, 8 Ga. 71; Johnson v. Clarke, 22 Ga. 541; Seaboard Air-Line Ry. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S. E. 220).
It follows, therefore, that the trial court erred in sustaining the demurrers to count 1 of the petition, but was correct in sustaining the general demurrer to count 2.
Judgment affirmed in part and reversed in part. Gardner, P. J., and Townsend, J., concur.