Opinion
42929.
ARGUED JULY 5, 1967.
DECIDED SEPTEMBER 5, 1967.
Action on account. Fulton Civil Court. Before Judge Camp.
Poole, Pearce Cooper, Robert R. Smith, for appellant.
Maley Crowe, D. Freeman Hutton, for appellee.
Since the cause of action pleaded in this case was not one on "open account" the court erred in not setting aside its judgment sustaining a motion to dismiss the defendant's answer and the final judgment against the defendant.
ARGUED JULY 5, 1967 — DECIDED SEPTEMBER 5, 1967.
Jupiter Broadcasting of Ga., Inc., sued Official Championship Speedway, Inc., on what appears from an allegation in the petition to be an action "on an account." Paragraph 2 of the petition alleges: "That defendant is indebted to plaintiff on an account in the sum of $1,418, which amount will more fully appear, by reference to the bill of particulars hereunto annexed, marked Exhibit `A', and made a part hereof." The bill of particulars referred to consists of a complete bi-lateral executory contract between the plaintiff and the defendant whereby the plaintiff sold the defendant certain specified "spot" advertisements during a period of 275 days @ $13 per "spot," each consisting of 60 seconds. In addition to the contract, the exhibit showed time charts showing when the "spots" were telecast, charges and credits to defendant on the contract or account. The court sustained an oral motion to dismiss the answer on the ground that a mere denial of Paragraph 3 of the petition was the general issue only and was insufficient in that it did not go further and allege that the defendant was not indebted in any sum or specify the amount which it admitted it owed. Code § 81-410. Final judgment was rendered for the plaintiff. The defendant appeals from the denial of a motion by the defendant to set aside the said judgments.
The court erred in not vacating and setting aside the judgment dismissing the defendant's answer and the final judgment against the defendant. While the petition alleges that the action is on "an account," there are other kinds of "accounts" than "open" accounts. If this action is on any kind of account it is not an action on an open account. In some cases an action may be brought on open account where there is a contract relating to obligations declared on in actions on open account. In this case the executory contract is pleaded as a part of the petition. It deals in detail with every duty of both parties and the exhibit shows copies of records presumably from records kept by the plaintiff showing partial performance of the contract — the contract having been terminated prematurely by permissive cancellation. In such a case as this the conclusion is required that the action is for a breach of a written contract. In such a situation a plaintiff filing such an action is hardly in a position to require a defendant to "toe" so technical a line as it contends for here. Keiser v. American Exp. Co., 112 Ga. App. 493 ( 145 S.E.2d 698). There is no real distinction between the petitions in this and the Keiser case. In that case the petition did not show that the contract was unconditional and in writing. Here the contract showed on its face that it was executory and conditional. But even if it could be said that an action on some kind of account could be brought in a case where every condition of liability is covered in detail by a written contract, Code § 81-410 does not cover it because this section deals exclusively with contracts on open accounts. For definitions of various kinds of accounts see: 1 CJS 571, 574, 575, Account; Nisbet v. Lawson, 1 Ga. 275, 287, 288; Smith v. Ellington, 14 Ga. 379, 382, 383; Davies v. Turner, 61 Ga. App. 531 ( 6 S.E.2d 356).
In the circumstances here the defendant's answer was good under Code § 81-306.
Judgment reversed. Hall and Eberhardt, JJ., concur.