National Surety Co. v. Farmers State Bank

89 S.E. 581, 145 Ga. 461, 1916 Ga. LEXIS 365

• Court: Supreme Court of Georgia
• Decided: July 12, 1916
• Status: Published

Opinion

Lumpkin, J.

(After stating the foregoing facts.)

1. A plaintiff may include in one petition several causes of action against the defendant, provided they are of the same character, that is, all sounding in tort, or all in contract. Civil Code (1910), § 5521. And if he does this by setting out the different causes of action in separate counts, he will not be compelled to elect on which count he will proceed. Southern Ry. Co. v. Chambers, 126 Ga. 404 (55 S. E. 37). The plaintiff may in different counts set out the same cause of action in various ways; and where the petition contains more than one count referring to the same transaction, but differing one from another in substantial particulars as to the details of such transaction, it is not bad for duplicity. Gainesville etc. Ry. Co. v. Austin, 122 Ga. 823, 825, 826 (50 S. E. 983). The allowance of the amendment showing that the contract of indemnity was made to include both the cashier and the assistant cashier of the plaintiff, and that the term had been extended in accordance with the provisions of the bond, will be considered presently. Assuming the bond to include both of these employees of the plaintiff, and that the loss was of a character covered by it, and occurred while it was in force, the fact that the plaintiff included two counts in his petition, alleging in one that a large item of the loss occurred through the misappropriation of the cashier, and in the other that it occurred through the misappropriation of the assistant cashier, did not render the petition demurrable on the ground of duplicity or inconsistency of causes of action. If suit should be brought against a railway company for a personal injury, and in one count it should be alleged that it was caused by the negligence of the engineer, and in another that it was caused by the negligence of the conductor, these counts would allege that the injury was caused by the conduct of different employees, hut this would not render the petition demurrable. Indeed, this variation is the very reason for employing more than one count. In the present case, if the indemnity bond included losses occasioned by the different employees, and each should claim that the other was guilty of the misappropriation, the employer would not be compelled to elect which of the two should be believed, and risk his entire case upon the contingency of the jury believing the same employee. If the loss existed, and resulted from the dishonesty of the one or the other, the action could be brought in separate counts, alleging in one that the loss resulted from the dishonesty of one of the employees, and in the other from the dishonesty of the other employee.

2. An amendment to the petition was allowed over the objection that it added a new and distinct cause of action. There was no error in this ruling. The original bond contained provisions for adding other employees to those who might be originally specified in the schedule as covered by the bond. It also contained a provision for the continuance of the bond in force for a longer time than that originally mentioned. The original petition alleged that the employees named in the schedule attached to the bond “and in the extension thereof,” for whose conduct, misfeasance, and defalcation the defendant became liable under the terms of the bond, were Wilson, the cashier of the plaintiíf, and Nesmith, the. assistant cashier, and that during the life of the bond and while it was in full force and effect a loss occurred. In the first count the principal item of loss was alleged to have been brought about by the dishonesty of Wilson, the cashier; in the second through that of Nesmith, the assistant cashier. The schedule "attached to the bond, as originally executed, mentioned only Wilson, the cashier, and in the bill of particulars attached to the petition all of the items except one bore date after the term named in the bond. The suit, however, was for a breach of the bond alleged to have occurred while it was in full force and applicable to both employees, with a reference to the schedule attached to it and “the extension” of it. Here were allegations referring to an extension of the bond to another employee than that first mentioned, and a time during which the bond was continued in force. The allegations originally made were imperfect, but they were elaborated by the amendment so as to set out distinctly the inclusion of Nesmith, the assistant cashier, as one of the employees covered by the terms of the bond, and likewise so as to show a continuance of the bond in force beyond the time first mentioned, in the manner provided in the instrument itself. This did not add a new and distinct cause of action, so as to be subject to objection on that ground. The case of Mayor and Council of Brunswick v. Harvey, 114 Ga. 733 (40 S. E. 754), is not in point. It was there held that where a suit was brought upon a bond guaranteeing a city against the fraud and dishonesty of its treasurer, and the allegations of the petition clearly showed that the action was predicated upon the original bond only, an amendment seeking to recover upon two other bonds given subsequently for a like amount and purpose, and adopting by reference the terms of the original bond, was not allowable, although the petition alleged that the bond sued on had been renewed from time to time. It was declared that, the renewals being separate and distinct contracts, the amendment sought to add a new and distinct cause of action. There the amendment sought to include the renewals as separate and independent contracts, and to recover an amount upon each of the renewals as well as a certain amount upon the original bond, making in the aggregate much more than the sum guaranteed in the first bond. In the opinion it was said: “The renewals, being separate and distinct contracts and not declared on in the original petition (which contained no hint or intimation that they were intended to be declared on), could not be added by way of amendment.” From what has been said it will be seen that the present ease differs from that. Nor is this case in its facts like that of Corporation of the London Assurance v. Paterson, 106 Ca. 538 (32 S. E. 650). It is also unlike Lamar v. Lamar, Taylor & Riley Drug Co., 118 Ga. 850 (45 S. E. 671), which involved entirely distinct and separate contracts. In the case at bar the question is not as to a proposed application of the statute of limitations, or like questions, but whether the amendment added a new and distinct cause of action to that set out, though perhaps imperfectly, in the original petition. See Ellison v. Georgia Railroad Co., 87 Ga. 691 (13 S. E. 809).

3. The amendment elaborated somewhat the allegations in regard to two of the items set out in the bill of particulars, so as to show that the losses therein mentioned arose from the dishonesty of Wilson. Two other items were stated as follows:

“Oct. 16th, 1912. To draft drawn by J. Y. Bridges. Payment refused, draft worthless, cash short......................21.50.

“Sept. 21st, 1912. To draft of W. F. Bozeman, claimed to have been sent to Cumberland Yalley National Bank, Nashville, Tenn., for collection. They claim no record. Cash short.......90.00.”

As to these items there were no other explanations. Although there were general allegations in one count of the petition that the defendant was indebted to the plaintiif the sum of $1517.93 (the aggregate of the bill of particulars), the amount of loss sustained through the dishonesty of Wilson and through acts done or omitted by him in bad faith, and like allegations in the other count charging the dishonesty to Nesmith, yet reference was made to an attached itemized statement of the loss suffered. The two items above set out, and referred to as part of the petition, failed to show that the losses were of the character covered by the bond; and they should have been stricken on demurrer. Direction is given that they be stricken.

4. A consideration is essential to a contract which the law will enforce. In some cases a consideration will be presumed, and an averment to the contrary will not be received. Such are generally contracts under seal, and negotiable instruments alleging a consideration on their face, in the hands of innocent holders without notice, who have received the same before dishonor. Civil Code (1910), § 4241. A negotiable note may import prima facie a consideration, though not in the hands of a taker before due. In some States, by statute, a written contract imports a consideration, at least prima facie. Ordinarily, in a suit on an executory simple contract, a consideration must be alleged, and it is not sufficient to allege generally that there is a consideration, or a valuable consideration, but the consideration must be alleged with reasonable explicitness. A general allegation of a valuable consideration may be sufficient to withstand a general demurrer, but not ordinarily a special demurrer attacking the lack of specification. But in some jurisdictions a motion has taken the place of a special demurrer. In Oslin v. Telford, 108 Ga. 803 (34 S. E. 168), there is a general statement that, in a suit on a written contract, when the petition alleges that the contract was made “upon sufficient consideration,” such allegation of consideration is sufficient, if other proper averments are made, to show a cause of action. But this is immediately followed by the statement that proper practice requires that an issue as to whether the petition contains sufficient allegations to show on its face a right of recovery be raised by demurrer; and it was held that the demurrer which was actually filed could not be considered, for reasons stated. So that this was' not a ruling that such an allegation was not subject to special demurrer. See also Pattillo v. Jones, 113 Ga. 330, 334 (38 S. E. 745). Sometimes a contract on its face shows a sufficient consideration; and in a suit based on such a contract, if it be set out, no other consideration need bjfaverred. Wood v. Knight, 35 App. Div. 21 (54 N. Y. Supp. 466); Leonard v. Sweitzer, 16 Ohio, 1; Jerome v. Whitney, 7 Johns. 321; Camp v. Scott, 47 Conn. 366, 378. In the instant case the suit is on an instrument called an indemnity bond. As the copy appears in the record, it recites a seal, but shows none. Hence it can not be treated as a sealed instrument. Civil Code (1910), § 4359; Brooks v. Kiser, 69 Ga. 762; Willhelms v. Partoine, 72 Ga. 898; Ridley v. Hightower, 112 Ga. 476, 479 (37 S. E. 733). Nevertheless the copy attached to the petition recites, that whereas the employer has appointed to positions in its service a certain person or persons whose name or names appear in the schedule attached, in respect to whom the employer desires indemnity, and whereas the employer may hereafter require like indemnity in respect to other persons in its service, “now, therefore, for and in consideration of a stipulated premium paid or agreed to be paid by the employer,” the surety company “hereby covenants and agrees to and with the employer,” etc. This allegation was specially demurred to on the ground that it was not a sufficient averment of the payment of the premium or its amount, or how, when, or to whom paid, or what term it covered. The amendment to the petition alleged that the plaintiff paid to a named agent of the defendant the premium of $8.18 required of it for entering into the indemnity covering the newly designated employee, and that such premium thus paid was for the year beginning the 15th day of November, 1913. Attached to the amendment was also a copy of an agreement by which the indemnity bond was extended. This recited that “in consideration of the payment of the annual premium charge on the 36th day of September during each and every year, or within sixty (60) days thereafter, that the bond hereinafter referred to shall continue in force, the National Surety Company hereby continues, for an indefinite term, beginning on the 36th day of September, 1913, its fidelity schedule bond,” etc. These recitals in the bond, and its continuance, sufficiently import a consideration; and when the allegation as to the payment of a stipulated premium is taken in connection with the instrument on which the suit was based, and of which a copy was attached, it was not subject to the demurrer.

5. Except as herein stated, there was no error in overruling the demurrer.

Judgment affirmed, with direction.

All the Justices concur.