Opinion
41684.
SUBMITTED JANUARY 10, 1966.
DECIDED FEBRUARY 8, 1966.
Action on account. Hall Superior Court. Before Judge Kenyon.
Telford, Wayne Greer, Joe K. Telford, for appellant.
Stow Garvin, Frank B. Stow, Wendell C. Lindsey, for appellee.
This being a suit on open account and not on an unconditional contract in writing, the defendant's answer which denied by paragraphs material allegations of the petition was sufficient to set forth an issuable defense to the action and the trial court erred in dismissing the answer and entering a default judgment for the plaintiff.
SUBMITTED JANUARY 10, 1966 — DECIDED FEBRUARY 8, 1966.
Commercial Tire Company filed suit in the Superior Court of Hall County against V. E. Williams. Paragraph 1 of the unverified petition alleged that the defendant was a resident of Hall County and subject to the jurisdiction of the court; paragraph 2 alleged "That defendant is indebted to plaintiff in the sum of $1,395.47, which amount is more fully set forth in the bill of particulars attached hereto, marked Exhibit `A' and made a part hereof"; and paragraph 3 alleged that the indebtedness was past due and unpaid and that, although plaintiff had made demand for payment, defendant refused to pay same.
The bill of particulars which was attached to the petition as an exhibit consisted of a printed from styled a "Conditional Sale Contract and Chattel Mortgage," and contained a description of five tires and one tube and prices totaling $585.33 with tax and showing $682.12 as "unpaid prior agreements." The form was dated January 4, 1965, and provided for 6 monthly payments starting January 15, 1965; however, the petition did not allege that this instrument had been executed by the plaintiff and the defendant.
The defendant filed an answer to the petition in which he admitted the allegations of paragraph 1 and denied the allegations of paragraph 2 and 3. The defendant in addition to denying the indebtedness and demand for payment alleged by way of further plea and answer that he had purchased no tires from the plaintiff in 1964 and had only purchased two used tires for $50 each in 1963; that the defendant had signed no contract with the plaintiff in 1964; and that if the attached exhibit had been signed by the defendant, it had been materially altered so as to cover the merchandise and prices shown thereon instead of said two used tires for which the defendant had agreed to pay $50 each.
The plaintiff filed an oral motion in the nature of a general demurrer to the defendant's answer on the ground that the answer constituted a plea of non est factum and was defective since it had not been sworn to and filed at the first term as required by law. The trial court sustained this motion, dismissed the defendant's answer and entered a default judgment in favor of the plaintiff in the amount sued for. The appeal is from that judgment.
Properly construed, this was an action on open account and not a suit on an unconditional contract in writing. Gordy Tire Co. v. Bulman, 96 Ga. App. 739 (1) ( 101 S.E.2d 220). Accordingly, the defendant's answer which denied the allegations of indebtedness and demand for payment was sufficient to set forth an issuable defense to the action and the trial court erred in dismissing the answer and in entering a default judgment in behalf of the plaintiff. Jones v. Hodges, 21 Ga. App. 594 (1) ( 94 S.E. 831); De Soto Plantation Co. v. Hammett, 111 Ga. 24 ( 36 S.E. 304); Keiser v. American Exp. Co., 112 Ga. App. 493 ( 145 S.E.2d 698).
While Exhibit "A" to the petition was styled a "Conditional Sale Contract and Chattel Mortgage," it was not alleged in the petition that such contract had been executed by the parties and the instrument was not declared upon as the basis of the plaintiff's cause of action, the petition merely alleging that the defendant was indebted to the plaintiff in a stated amount as more fully shown by an attached bill of particulars which is an itemized statement of account.
As held by this court in Chatham Abattoir c. Co. v. Painter Engineering Co., 28 Ga. App. 383 ( 111 S.E. 82), "In such a suit, the contract not being declared on, its breach does not constitute the cause of action, but the contract can be used merely as evidence of the indebtedness." Since the petition in this case did not expressly declare upon a written contract as the basis of the suit, it was not necessary for the defendant to file a sworn plea of non est factum in order to be entitled to deny the execution of the contract or claim a material alteration therein should it be introduced on the trial of this case as evidence of the indebtedness sued upon. Howard Piano Co. v. Glover, 7 Ga. App. 548, 549 ( 67 S.E. 277).
Judgment reversed. Bell, P. J., and Eberhardt, J., concur.