Norwood Realty Co. v. P. & H. Homes, Inc.

107 S.E.2d 292, 98 Ga. App. 839, 1959 Ga. App. LEXIS 993

Opinion

Nichols, Judge.

The plaintiff had entered into a contract with the defendant whereby the plaintiff was' to build certain houses and, when the completed houses were sold by the defendant, the profits were to- be divided equally between the parties. The defendant contends, and this is the only argument presented before this court, that the contract, which was attached as an exhibit to the petition, shows that no payments were due to be made until all the houses were sold by the defendant, and that the petition shows that two of the houses had not been sold at the time the action was filed, that therefore the action being premature, its general demurrer should have been sustained. It is not argued or contended that the petition does not otherwise set forth a cause of action, it being, in effect, conceded that if the action is not premature a cause of action is set forth.

“ ‘The objection that an action is prematurely brought can, be raised only by a timely formal plea in abatement, or, if the defect appears on the face of the pleading, by a special demurrer filed at the first term. Realty Company v. Ellis, 4 Ga. App. 402 (61 S. E. 832); and cit.; Jester v. Bainbridge Bank, 4 Ga. App. 469 [61 S. E. 926].’ Gate City Fire Insurance Co. v. Thornton, 5 Ga. App. 585 (1) (63 S. E. 638).” Walker v. Jenkins, 32 Ga. App. 238 (123 S. E. 161).

, While the defendant contends in its brief that the action was prematurely filed, the renewed demurrer in the instant case was a general demurrer and would not reach such a defect if it existed. Accordingly, the trial court did not err in overruling the defendant’s general demurrer where the only contention of the defendant in support of such demurrer was without merit.

Judgment affirmed.

Felton, C. J., and Quillian, J., concur.