Chatham Abattoir & Packing Co. v. Painter Engineering Co.
This text of 111 S.E. 82 (Chatham Abattoir & Packing Co. v. Painter Engineering Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1. An action may be brought and sustained on open account for goods sold or services rendered, although there may have been a special contract in writing governing the subject-matter of the suit, where it appears that the plaintiff has fully performed his part of the agreement and nothing remains to be done except for the other party to make payment. Tumlin v. Bass Furnace Co., 93 Ga. 594 (2, 3) (20 S. E. 44); Burch v. Harrell, 93 Ga. 719 (20 S. E. 212); Southern Printers Supply Co. v. Felker, 125 Ga. 148 (54 S. E. 193); Shedd v. Standard Sewing Machine Co., 21 Ga. App. 373, 376 (94 S. E. 646). 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. Chapman v. Conwell, 1 Ga. App. 212 (2) (58 S. E. 137); Pittman v. Hodges, 13 Ga. App. 25, 26 (78 S. E. 688); Ittner v. Farmers State Bank, 15 Ga. App. 235 (82 S. E. 909).
2. Under the system of pleading in this State, there was nothing to prevent the plaintiff from embracing in his petition a separate and independent count based upon a breach of contract. (Southern Ry. Co. v. Chambers, 126 Ga. 404 (5), 410 (55 S. E. 37); McMillan v. Heard National Bank, 19 Ga. App. 148, 151 (91 S. E. 235).
3. The petition as amended was not subject to demurrer.
Judgment affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
111 S.E. 82, 28 Ga. App. 383, 1922 Ga. App. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chatham-abattoir-packing-co-v-painter-engineering-co-gactapp-1922.