Armor v. Stubbs

The petition set forth a cause of action for specific performance of a contract for the said of land, and was not subject to the demurrer- filed. “ If, for any cause, the specific performance is impossible, or the vendee declines to accept a performance in part, the court may proceed to assess damages for the breach of the contract.” Civil Code, § 4639. Where the petition for specific performance of a contract for the sale of land contains two counts, in the first of which there is a prayer for specific performance, and in the second there is a prayer for damages for failure to perform, the second count does not render the petition demurrable.

Where a general demurrer to a petition is overruled, and the defendant takes the case to the Supreme Court by bill of exceptions in which error is assigned upon such ruling, he cannot also properly assign error upon a judgment striking portions of his answer. Turner v. Camp, 110 Ga. 631 (2), 632 (36 S. E. 76); Cox v. Hardee, 135 Ga. 80 (5), 90 (68 S. E. 932). This is true although the decision overruling the general demurrer, and that striking portions of the answer, *521are embraced in the same judgment. Permission is given that the official copy of the exceptions assigning error upon the judgment striking a portion of the defendant’s answer be filed as exceptions pendente lite, Judgment affirmed.