Opinion
34105.
DECIDED JUNE 20, 1952.
Certiorari; from Cherokee Superior Court — Judge Brooke. March 24, 1952.
Sam P. Burtz, A. J. Henderson, for plaintiff in error.
Leon Boling, J. P. Fowler, contra.
1. The demurrer and motion to dismiss were properly overruled.
2. The evidence demanded a finding for the defendant, and the court erred in overruling the certiorari.
DECIDED JUNE 20, 1952.
W. A. Lathem Sons sued O. J. Green in a justice's court in Cherokee County. The account attached to the summons was as follows: "November 6, 1950, Ode Greene, Canton, Ga. To W. A. Lathem Sons, Dr., 1950, To 1/4 Guano used by W. W. Sosebee, $27.07." A general demurrer to the summons and account was overruled. The cause proceeded to trial, and a judgment was rendered in favor of the plaintiff. An appeal was entered to a jury in the justice's court and the cause came to trial before a jury. Before entering upon the trial of the case the defendant made an oral motion in the nature of a general demurrer to dismiss the summons and account on the ground that the same showed on its face that the defendant was not indebted to the plaintiff, and that the account showed on its face that it was not the debt of the defendant but was the debt of another, and the defendant renewed his general demurrer to the summons and account. The court overruled the motion and renewed demurrer, and the case proceeded to trial before a jury.
Herbert Lathem testified for the plaintiff as follows: I work for W. A. Lathem Sons. I contacted Mr. Green with reference to this account being sued on. He told me that Sosebee came to him with the money after he sold the bale of cotton, and he (Green) told him to take it to Lathem's and pay the fertilizer bill; that he did not personally sell the fertilizer, but that he knew that the same had been sold to Sosebee and credit had been extended to Sosebee for the same; that W. A. Lathem Sons or its agent had never had any conversation with the defendant prior to the sale of the fertilizer to Sosebee or had any contract with Green with reference to payment for the same.
O. J. Green, the defendant, testified as follows: W. W. Sosebee was my tenant. He made a crop on my land. I rented to him on thirds and fourths. I do not know where he bought the fertilizer he used except he said he got it at Lathem's. I do not understand that a landlord is liable for his part of the fertilizer bill made by his tenant. I don't know where he used the fertilizer or whether he used any of it on his corn or not. He came to me after he had sold the bale of cotton and said that he had sold it and had the bill, and I told him it would take all of it to pay the guano bill. I don't recall ever having paid for all the fertilizer in the spring right after it was bought when I was renting on thirds or fourths. It is sometimes done when renting on the halves. I don't recall ever having paid for all the guano in the spring. I didn't admit owing any part of the guano bill by telling him to take the money to Lathem's to pay the fertilizer bill. It has always been the practice for the tenant to take the first bale of cotton to pay for the fertilizer and I thought he would do that but he didn't. When a person is renting from me on thirds or fourths I do not try to control his manner of planting his crop or what he plants or how much fertilizer he uses or who he gets it from. I did not try to tell Mr. Sosebee what to do. He was renting from me on thirds or fourths. He did come to me, and I told him that it would take it all to pay for the guano. I do not consider it my moral or legal obligation to pay another man's debts. I never had any contract of any kind with W. A. Lathem Sons to pay for this man's fertilizer bill. I did not receive a dime from his cotton crop. He sold the cotton and left with the money. There is some of the fertilizer still up there or there was the last time I was there. It was in the barn. He left it there. I did not consider this tenant as my agent or that I was bound by what he did as my tenant. My tenant always bought the fertilizer and paid for it with the first bale of cotton. I told Sosebee to take the cotton to W. A. Lathem Sons and pay the fertilizer bill for me and himself, to pay my share and his share.
The jury found for the plaintiff. The defendant filed his petition for certiorari to the Cherokee Superior Court, the certiorari was overruled, and he excepts.
1. Strict pleadings are not required in a justice's court and the account attached to the summons was sufficient to inform the defendant of the plaintiff's claim against him. Hendrix v. Elliott, 2 Ga. App. 301 ( 58 S.E. 495); Moore v. Bower, 6 Ga. App. 450, 452 (2) ( 65 S.E. 328). The demurrer and motion to dismiss were properly overruled.
2. The witness for the plaintiff testified that W. A. Lathem Sons or its agent never had any conversation with the defendant prior to the sale of the fertilizer to Sosebee, and had no contract with the defendant with reference to payment for the fertilizer. Therefore, the plaintiff is not contending, nor did the evidence prove, that the defendant personally bought the fertilizer. The evidence did not show that the defendant was a guarantor (see Southern Coal Coke Co. v. Randall, 141 Ga. 48, 80 S.E. 285); nor did it show that the defendant undertook to pay the debt of Sosebee (see Code, § 20-401 (2)); nor did it show that Sosebee was the defendant's agent, or purported to act as agent when he bought the fertilizer and the buying was ratified by the defendant. The defendant in error relies on the following testimony to show that the defendant was liable for the account sued on: "I [defendant] told Sosebee to take the cotton to W. A. Lathem Sons and pay the fertilizer bill for me and himself, to pay my share and his share." The only construction that could be put on this testimony in the light of all the other evidence was that the defendant owed Sosebee, not the plaintiff, for a part of the fertilizer and that he instructed Sosebee to take the first bale of cotton to pay Sosebee's share and the share that the defendant owed Sosebee. No other reasonable construction of the evidence is possible, and a finding was demanded that the defendant did not owe the account sued on.
The court erred in overruling the certiorari.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.