Collins v. Lyon, Lyon & Co.
Collins v. Lyon, Lyon & Co.
Opinion of the Court
David Collins, the plaintiff in error, filed his petition in the Superior Court of Richmond County for an accounting against Lyon, Lyon & Company, the defendant in error. In substance the petition alleged: that on January 31, 1958 the plaintiff in error transferred a described tract of land to the defendant by security deed to secure a promissory note of $7,500; that on November 14, 1958 the plaintiff transferred a described tract of land to the defendant by security deed to secure a promissory note of $3,000; that over a period of four
The bill of exceptions assigns error on the order sustaining a general demurrer to the petition.
The general demurrer was filed on the ground that: (1) the petition states no cause of action; (2) it appears from the petition that plaintiff has an adequate remedy at law; (3) there is no allegation of how much plaintiff owed defendant when the described’ property was sold; (4) the security deeds contained open-end clauses, and it was not alleged that there was no other indebtedness secured by the deeds.
We are of the opinion that the ptetition states a cause of action for an accounting and that the trial court erred in sustaining the general demurrer. In Southern Feed Stores v. Sanders, 193 Ga. 884 (2) (20 SE2d 413), it was held: “A petition for accounting, in which the plaintiff sets out facts indicating that something would be found due to him and resorts to equity to preserve the records of the business, which are in possession of the defendant, from removal or destruction pending the accounting, is not subject to dismissal on general demurrer on the ground that it alleges no cause of action, nor is it subject to special demurrer calling for a bill of particulars for the exact amounts.” See also the cases cited in Division 2 of the Southern Feed Stores opinion, and Martin Distributing Co. v. Roberts, 219 Ga. 525 (3) (134 SE2d 587). The allegations in the amended petition, taken as a whole, are sufficient to show that the several sums received by the defendant from the sale of the land, the bales of cotton and other items of indebtedness alleged to be due the plaintiff by the defendant exceeded the total amount of the debts owed by the plaintiff to the defendant that were secured by the loan deeds. From the above cited cases, it appears that grounds 1, 2, and 3 of the general demurrer are without merit. As to ground 4, that the plaintiff failed to allege that there was no other indebtedness secured by the security deeds, the plaintiff is not
The trial court erred in sustaining the general demurrer.
Judgment reversed.
Dissenting Opinion
dissenting. I dissent for the reason that the petition, properly construed, fails to allege that some amount would be found due the plaintiff upon the accounting he seeks and hence none of the relief prayed can be granted.
Of decisive significance are the open-end clauses in each of the security deeds, copies of which are attached to the petition. The instrument of January 31, 1958, recites that it was intended to secure payment of a note for the principal sum of $7,500, “together with any and all other indebtedness now owing or which may hereafter be owing by [the plaintiff] to [the defendant], however incurred, and all renewals or extensions of said indebtedness either in whole or in part.” The instrument of November 14, 1958, recites the securing of a principal indebtedness of $3,000, together with an identically worded open-end clause.
While the plaintiff alleges that several transactions occurred whereby he was entitled to specific credits upon his indebtedness, he nowhere alleges that he is not indebted to the defendant in any amount under the security deeds. Also, while he alleges that the defendant made a profit from the sales of certain properties described in the petition, he does not allege that this was over and above all amounts owed the defendant, including the original debt and any additional indebtedness incurred pursuant to the open-end clauses.
Applicable here is the well established rule that a pleading must be construed most strongly against the pleader, and where an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties. A corollary, also applicable here, is that upon general demurrer it will be presumed that the plaintiff pleads his case in the light most favorable to his case.
In view of the open-end clauses, provided so as to secure indebtedness in addition to those initially incurred for $7,500
In view of this, “the law will not do a vain thing and order an accounting, when the petitioner does not aver facts sufficient to indicate that something will be found to be due him by the defendant.” Bowman v. Chapman, 179 Ga. 49 (2) (175 SE 241).
For the reasons stated above, I would affirm the judgment of the trial court.
I am authorized to state that Chief Justice Duckworth concurs in this dissent.
Reference
- Full Case Name
- COLLINS v. LYON, LYON & COMPANY, INC.
- Status
- Published