Bowers v. Atlanta Constitution Publishing Co.

21 S.E.2d 717, 67 Ga. App. 715, 1942 Ga. App. LEXIS 507

• Court: Court of Appeals of Georgia
• Decided: July 16, 1942
• Docket: 29430.
• Status: Published

Opinions

Stephens, P. J.

This is a suit against W. M. Bowers, W. E. Echols, and E. C. Thurston, to recover on a contract of guaranty by which they guaranteed to pay the Constitution Publishing Company for any papers which the company might furnish William Thurston, a newsboy, who, it was contemplated would receive papers from the Constitution Publishing Company and sell them to subscribers. The plaintiff alleged generally that the papers were furnished to Thurston, and that the latter had not paid therefor and was indebted to the plaintiff in an aggregate amount, to wit, $122. It was also alleged that this indebtedness was represented by promissory notes which Thurston had made to the plaintiff, copies of which were attached to the petition. It does not appear from the petition when and at what times papers were furnished by the plaintiff to Thurston.

The defendants demurred to the petition on the ground that it failed to set out a bill of particulars showing the items represented by the copies of the newspapers furnished to Thurston. The court overruled the demurrer and the defendants excepted. Does the petition set out with sufficient particularity the cause of action sued on? The only statutory mandatory requirement for a bill of particulars is contained in Code § 81-105, where it is provided that in suits on open account the defendant may, as a matter of right, demand a bill of particulars. The suit here is not on open account but on the contract of guaranty by which the defendants agreed to pay what amounted to an open account of Thurston. Had the papers been furnished to Thurston in one transaction, which is not the case here as appears from the petition, and had Thurston given a note therefor evidencing the indebtedness, the guarantors would not be entitled, as was held in Kalmon v. Scar boro, 11 Ga. App. 547 (75 S. E. 846), to a bill of particulars or a statement of the items furnished.

It appears from the petition that the plaintiff furnished Thurs-ton various copies of its newspaper from day to daj^, and the suit is to recover of the guarantors on an indebtedness by which Thurs-ton was due to pay the plaintiff for papers to be furnished him in various numbers from day to day. The guarantors, before being called on by the plaintiff to pay for various copies of newspapers furnished Thurston from day to day, were entitled to an itemized statement of the papers furnished. In a suit by the Constitution Publishing Company against Thurston on open account to recover for the papers furnished him Thurston would be entitled to such an itemized statement. It would therefore seem that in a suit against the guarantors by the publishing company to recover of them for papers furnished Thurston, the guarantors would be entitled to the same detailed information to which Thurston would be entitled. This is true notwithstanding the suit against the guarantors is not on an open account but is on their contract of guaranty by which they agreed to pay the indebtedness of Thurs-ton which arose on open account. The court erred in overruling the special demurrer of Bowers and Echols in which the petition was demurred to as failing to set out in particular the items representing the newspaper furnished Thurston.

The execution by Thurston to the publishing company of notes representing the indebtedness due by him for newspapers furnished him did not constitute a novation of the contract sued on or of the contract with Thurston, and in no way affected or increased the risk of the guarantors. See Kalmon v. Scarboro, supra. The court therefore did not err in striking paragraph 7 of the plea which set up that the taking by the plaintiff of the notes from Thurston resulted in a material alteration of the original contract without the knowledge or consent of the defendants, constituted a novation, and released the defendants from liability.

The suit was.against the three guarantors. The court, after having overruled the special demurrer to the petition, and after having sustained the demurrer of the plaintiff to paragraph 7 of the answer, and after hearing evidence, directed a verdict for the plaintiff in the full amount sued for as against Bowers and Echols, and granted a nonsuit as to Thurston. All three of these defendants are plaintiffs in error. The only final judgment complained of is the direction of a verdict against only Bowers and Echols. Of this final judgment, which does not affect Thurston, the latter has no right to complain. The final judgment which affects him is the one in his favor—the granting of a nonsuit as to him.

The judgment is reversed as to Bowers and Echols, but as to E. C. Thurston the writ of error is dismissed.

Judgment reversed as to W. M. Bowers and W. B. Echols.

Fel ton, J., concurs. Sutton, J., dissents. Writ of error dismissed as to E. 0. Thurston. Sictton and Felton, JJ., concur.