Moss & Co. v. Fortson

27 S.E. 745, 99 Ga. 496

Opinion

Atkinson, Justice.

Two causes of action were stated in the declaration before the ninth paragraph was stricken by amendment. That paragraph declared upon an assumpsit. By it the plaintiff undertook to recover a sum certain alleged to be actually due for sendees performed -at the request of the defendants. The major part of the declaration, however, is an action for damages alleged to have resulted to the plaintiff in consequence of a non-performance upon the part of the defendants of certain duties assumed by them in the execution of the agreement stated in the declaration. The declaration alleged the contract; alleged a duty to be owing from the defendants to the plaintiff; alleged the breach of the contract, and the resulting breach of this duty; and alleged general damages flowing to the plaintiff from such breach. It therefore contained a statement of a cause of action. If the elements of damage were not alleged in such manner as to enable the defendants intelligently to plead, the remedy was by special demurrer; bu't there being a cause of action stated in the declaration, it is sufficient to support a verdict founded thereon, and will prevail against a motion in arrest of judgment. See Moss & Co. v. Stokeley, 95 Ga. 675. Judgment affirmed.