Opinion
36341.
DECIDED FEBRUARY 22, 1957. REHEARING DENIED MARCH 15, 1957 AND MARCH 28, 1957.
Action for rent. Before Judge Rees. Macon Superior Court. May 15, 1956.
A. C. Felton, III, for plaintiffs in error.
J. J. Brewer, Jared Bull, Davis Friedin, contra.
1. A petition which clearly shows that the amount sued for could have been arrived at by only one method of calculation, is not demurrable on the ground that it does not disclose the bases upon which such calculation was made.
2. The petition set forth a cause of action for the occupancy of rented premises after the expiration of the rental contract. The amendment undertook to set up in lieu of the cause originally declared upon a cause upon an implied contract to pay rent. The gravamen of the first cause as set up in the petition was the wrongful occupancy of another's property, while the essence of the second action alleged in the amendment was the occupancy of property with the implied consent of its owner. The first action sounded in tort, the second was a suit upon a contract. The conclusion is inescapable that the amendment set up a new cause of action.
3. The assignment of error on the striking of the plea of res adjudicata cannot be made in a bill of exceptions assigning error on the judgment overruling the general demurrer to the petition.
4. There being no final disposition of the present case, the assignment of error on the sustaining of the plaintiff's demurrer to the cross-bill is premature, and this court is without jurisdiction to pass upon it at this time.
DECIDED FEBRUARY 22, 1957 — REHEARING DENIED MARCH 15, 1957 AND MARCH 28, 1957.
Ed. M. McKenzie sued Louis Williams and Leslie Williams for rent on a farm in Macon County. The petition alleged that the defendants were the plaintiff's tenants during the year 1953, but, notwithstanding the expiration of the term of the relationship of landlord and tenant, the defendants held possession of the farm for and during the crop year 1954. The sum sued for was $4,500. The defendants demurred to the petition on the ground that it did not set out how the amount of $4,500 was arrived at nor on what it was based. The trial judge overruled the demurrer. The defendants filed a plea of res judicata in which it was alleged that the judgment was rendered on November 6, 1954, in the Superior Court of Macon County in favor of the defendants on the same subject matter and between the same parties as in the present case and that the Superior Court of Macon County had jurisdiction of the matter. The plea alleged that copies of the pleadings, verdict and judgment were attached thereto and that the judgment was an adjudication of the cause. They read:
"Ed. M. McKenzie Dispossessory Warrant Vs Macon Superior Court Louis Williams Leslie Williams Georgia, Macon County. Personally appeared before the undersigned Louis Williams who being first sworn on oath deposes and says that he is one of the defendants in the eviction affidavit of Edwin M. McKenzie as agent of Ed. M. McKenzie having reference to Ed. M. McKenzie's Henry Taylor Farm located in the 14th Land District of Macon County, Georgia, and that he and Leslie Williams are not holding over beyond their term. Louis Williams. Sworn to and subscribed before me, this January 5, 1954. Lewis Hicks, N. P. Ex. Off. J. P. 770th District, G. M. Macon Co., Ga. Georgia, Macon County.We, Louis Williams and Leslie Williams, principal and John F. Williams security, acknowledge ourselves jointly and severally bound to Ed. M. McKenzie subject to the following conditions:
Whereas, Edwin M. McKenzie as agent of Ed. M. McKenzie has made affidavit pursuant to Code Section 61-301 to evict said Louis Williams and Leslie Williams from Ed. M. McKenzie's Henry Taylor Farm in the 14th district of Macon County, Georgia, and said Louis Williams and Leslie Williams have filed their counter-affidavit in terms of law:
Now should the said Louis Williams and Leslie Williams pay to the said Ed. M. McKenzie such sum, with costs, as may be recovered against him on the trial of this case, then this bond to be void, otherwise of full force and effect. Witness our hands and seals this 6 day of Jan. 1954.
Louis Williams (L. S.) Leslie Williams (L. S.) Principal John F. Williams (L. S.) Security We, the jury find in favor of the defendant in both issues. 11-16-54. O. S. Edwards, Foreman Whereupon, it is considered, ordered and adjudged that the defendant have and recover of the plaintiff the costs, to be taxed by the clerk.This Nov. 16, 1954
Cleveland Rees, J. S.C. S.W. C." The plaintiff demurred to the plea on the grounds: (1) That the plea fails to show facts that the purported former judgment was a bar to the present action. (2) That it does not allege that the former proceedings involved either the same issues of the same cause of action or the same subject matter. (3) That it does not affirmatively show that the matter in judgment was the same matter set forth in the complaint. (4) That it does not constitute a valid defense.The plaintiff offered an amendment to the petition. The plaintiff amended his petition by renouncing any claim for double rent and by alleging that his right of recovery was predicated on the obligation of the defendants to pay rent "where the title is shown in the plaintiff and the occupation by the defendants." The defendants demurred to the amendment on the ground that it sought to set up a new cause of action, and filed an answer and cross-bill. The cross-bill claimed that the plaintiff had damaged the defendants in the sum of $8,500 by virtue of the fact that, after having entered into a rental contract for the farm in question by the terms of which the plaintiff rented the same to the defendants for 5 years beginning in 1952, the plaintiff wrongfully swore out a dispossessory warrant against the defendants on January 4, 1954, on the ground that they had failed to pay the rent that was due and were holding over beyond their rental term. The cross-bill related that the dispossessory warrant was tried in Macon Superior Court, and a verdict and judgment rendered in the defendants' favor on November 6, 1954. It set out that by reason of the dispossessory warrant being sued out and on account of the plaintiff's circulating certain false and malicious statements concerning the defendants, their reputation was injured to such an extent that they were hindered in their farming operations in a named sum, and suffered other damages in other specified sums. The cross-bill also alleged that the defendants were entitled to recover a certain sum of the plaintiff as attorney's fees because of a certain distress warrant and the before mentioned dispossessory warrant having been sued out and also by reason of the plaintiff having filed the present suit. The plaintiff demurred to the cross-bill on the ground that it undertook to assert by way of setoff a claim not of similar nature to the demand of the plaintiff sued upon. The demurrer alleged that the liability of the defendants to pay rent was that of tenants holding over but does not state what the defendants contend the nature of the actions set up by the cross-bill was or wherein it was dissimilar in nature to the cause of action set forth in the petition. The plaintiff further demurred to the cross-bill on the ground that it sought to recover attorney's fees and that in the kind of action set up by the cross-bill attorney's fees are not recoverable. The demurrer also attacked the cross-bill on the ground that the matter set up therein was not the proper subject matter of cross-action.
1. In this case the plaintiffs in error, Louis Williams and Leslie Williams, will be referred to as the defendants, and the defendant in error, Ed. M. McKenzie, will be referred to as the plaintiff, the parties having occupied those respective positions in the trial court.
The judgments of the trial court which the bill of exceptions brings to this court for review are: The judgment overruling the demurrer to the petition as originally drawn; the judgment allowing the amendment to the petition; the judgment striking the plea of res judicata; and the judgment sustaining the demurrer to the cross-bill.
The demurrer to the petition raised the single question whether its allegations disclosed the basis upon which the plaintiff arrived at the sum of $4,500, the amount he sought to recover. The defendants argue that, in view of the fact that there had been a rental contract for the year 1953, they were entitled to be informed by the petition whether the sum sued for was based upon the rental price fixed by the expired contract or whether it was measured by what the plaintiff considered the occupancy of the premises reasonably worth or whether it represented double the yearly rental value of the farm. There was no intimation in any allegation of the petition that the suit was for double rent. Under the law the amount sued for could not have been fixed by the expired rental contract. Williams v. Bernath, 61 Ga. App. 354 ( 6 S.E.2d 184). So from the averments of the petition it clearly appears that the $4,500 was the sum that the plaintiff thought was reasonable compensation for the occupancy of the farm.
2. The second question presented by the bill of exceptions is whether the amendment to the petition should not have been allowed because it set up a new cause of action. We have construed the petition to set forth a cause of action for the occupancy of rented premises after the expiration of the rental contract. The amendment undertook to set up in lieu of the cause originally declared on a cause upon an implied contract to pay rent. The gravamen of the first cause as set up in the petition was the wrongful occupancy of another's property, while the essence of the second action alleged in the amendment was the occupancy of property with the implied consent of its owner. The first action sounded in tort, the second was a suit upon a contract. The conclusion is inescapable that the amendment set up a new cause of action, and was erroneously allowed.
While the plaintiff in the first instance could have waived the tort, treated the defendants as his tenants and sued upon their implied obligation to pay him rent if he had so elected ( Ridgway v. Bryant, 8 Ga. App. 564, 70 S.E. 28; Code § 105-105), he did not choose that option, and having once sued in tort, the action could not thereafter be changed to a suit on the implied contract. Beard v. Beard, 197 Ga. 487 (2) ( 29 S.E.2d 595).
It has been held that where the petition is ambiguous in that it does not definitely disclose whether the cause asserted is ex contractu or ex delicto, it will ordinarily be construed as sounding in tort. Aiken v. Southern Ry. Co., 118 Ga. 118, 120 ( 44 S.E. 828, 62 L.R.A. 666, 98 Am. St. R. 107). It is well established that where the nature of the cause declared upon does not clearly appear from the petition, it will be construed as will best serve the interest of the pleader. Payton v. Gulf Line Ry. Co., 4 Ga. App. 762 (2) ( 62 S.E. 469); Southern Express Co. v. Pope, 5 Ga. App. 689 (2) ( 63 S.E. 809). We mention the foregoing rules because they are relied on by counsel. Neither of them is applicable to the facts of this case.
The defendants earnestly contend that the petition is ambiguous as to the nature of the cause of action it undertakes to set forth because, after relating the basic facts upon which the defendants became liable to the plaintiff, namely that they held possession of his farm after the expiry of the rental contract, it alleged that for that reason the defendants were "indebted" to him in a stated sum. These are instances in which the words "debt" and "claim for damages" denote entirely different things. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 ( 200 S.E. 203); and in other circumstances they are held synonymous, Jones v. Womack, 53 Ga. App. 741, 742 ( 187 S.E. 285). In Chavala Cooperative v. Hortman, 93 Ga. App. 505 (3) ( 92 S.E.2d 236), this court held the word "debt" in its general sense means a specific sum which one owes to another, and in Georgia Power Co. v. Davis, 43 Ga. App. 791, 792 ( 160 S.E. 690) that the meaning of the word "debt" does not embrace liability for tort. But where, as in the petition in this case, it is alleged that the defendants are indebted to the plaintiff on account of wrong done him, and no other basis, the word must be construed in context to mean "liable," and the allegation is in effect an averment that the defendant is liable to the plaintiff. The demurrer to the petition previously referred to was construed to raise only the question as to the basis on which the plaintiff arrived at the sum sued for. Had the demurrer attacked the petition on the ground that it did not disclose whether the action was one ex contractu or one ex delicto, the defendants would have been committed to the proposition that the petition was ambiguous in that respect, and could not have complained that the amendment changed the nature of the cause of action from a tort action to a suit on implied contract. Raines v. Rice, 65 Ga. App. 68, 73 ( 15 S.E.2d 246).
3. In Cooledge v. Casey, 58 Ga. App. 134, 137 ( 198 S.E. 96), this court held: "An assignment of error on a judgment striking an answer can not be made in a bill of exceptions assigning error on a judgment overruling a general demurrer to a petition. Wright v. Morris, 50 Ga. App. 196 (3) ( 77 S.E. 365)." It follows that the assignment of error on the striking of the plea of res adjudicata cannot in this case be made in the bill of exceptions assigning error on the judgment overruling the general demurrer to the petition.
4. In White v. Chisolm, 160 Ga. 177 ( 127 S.E. 140) it is stated: "The judgment of the court below sustaining the demurrer of the plaintiff to the counter-petition or cross-action filed by the defendant can not be reviewed by direct bill of exceptions prior to the final disposition of the plaintiff's case in the court below. Knights of The Klu Klux Klan v. Terrell, 155 Ga. 374 ( 116 S.E. 793); Bellinger v. Eblin, 158 Ga. 657 ( 124 S.E. 137)." There being no final disposition of the present case, the assignment of error on the sustaining of the plaintiff's demurrer to the cross-bill is premature, and this court is without jurisdiction to pass upon it at this time.
Judgment affirmed in part and reversed in part. Felton, C. J., and Nichols, J., concur.