Sewell v. Gould

Court of Appeals of Georgia

Sewell v. Gould

119 S.E.2d 598, 103 Ga. App. 456, 1961 Ga. App. LEXIS 964

CourtCourt of Appeals of Georgia

DecidedApril 4, 1961

Docket38724

StatusPublished

Cited by2 cases

This text of 119 S.E.2d 598 (Sewell v. Gould) 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.

Bluebook

Sewell v. Gould, 119 S.E.2d 598, 103 Ga. App. 456, 1961 Ga. App. LEXIS 964 (Ga. Ct. App. 1961).

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Opinion

*457 Felton, Chief Judge.

Harry Gould sued Mary Louise Sewell and S. J. Sewell to recover penalties because of an alleged breach of a home improvement contract, alleged to have been executed on April 5, 1959. Attached to the petition was an alleged copy of the contract referred to in the petition which shows that it was executed by the defendants and the plaintiff on April 5, 1959. The plaintiff amended the petition by changing the date “April 5, 1959,” as it appeared in the first line of paragraph 2 of the petition, to read “April 4, 1959”; and further amended the petition by changing the date of “April 5, 1959” to “April 4, 1959” wherever the former date appeared in the petition. The date on the copy of the contract attached to the petition was not amended and the date thereon remained April 5, 1959. The defendants made a motion to dismiss the action in the nature of a general demurrer on the ground that the petition showed on the face of the contract, a copy of which was attached to the petition, that the contract was void and unenforceable because it was dated on “a Sunday.” A contract, such as the one sued on, dated on Sunday, is unenforceable. Code §§ 26-6905, 38-112; Browne v. Snipes, 97 Ga. App. 149 (102 S. E. 2d 634). If the amendment had sought to' correct the date of the contract involved by showing that the copy attached to the petition bore an incorrect date because of a typographical error, our conclusion would be different. So long as the date of the contract sued on is April 5, 1959, the only recourse the plaintiff would have to correct a mistake in the date, if there actually was one, would be to reform the contract in equity.

The court erred in overruling the motion to dismiss the action, and all further proceedings were nugatory.

Judgment reversed.

Nichols and Bell, JJ., concur.

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*457 Felton, Chief Judge.

Harry Gould sued Mary Louise Sewell and S. J. Sewell to recover penalties because of an alleged breach of a home improvement contract, alleged to have been executed on April 5, 1959. Attached to the petition was an alleged copy of the contract referred to in the petition which shows that it was executed by the defendants and the plaintiff on April 5, 1959. The plaintiff amended the petition by changing the date “April 5, 1959,” as it appeared in the first line of paragraph 2 of the petition, to read “April 4, 1959”; and further amended the petition by changing the date of “April 5, 1959” to “April 4, 1959” wherever the former date appeared in the petition. The date on the copy of the contract attached to the petition was not amended and the date thereon remained April 5, 1959. The defendants made a motion to dismiss the action in the nature of a general demurrer on the ground that the petition showed on the face of the contract, a copy of which was attached to the petition, that the contract was void and unenforceable because it was dated on “a Sunday.” A contract, such as the one sued on, dated on Sunday, is unenforceable. Code §§ 26-6905, 38-112; Browne v. Snipes, 97 Ga. App. 149 (102 S. E. 2d 634). If the amendment had sought to' correct the date of the contract involved by showing that the copy attached to the petition bore an incorrect date because of a typographical error, our conclusion would be different. So long as the date of the contract sued on is April 5, 1959, the only recourse the plaintiff would have to correct a mistake in the date, if there actually was one, would be to reform the contract in equity.

The court erred in overruling the motion to dismiss the action, and all further proceedings were nugatory.

Judgment reversed.

Nichols and Bell, JJ., concur.

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Bluebook (online)

119 S.E.2d 598, 103 Ga. App. 456, 1961 Ga. App. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-gould-gactapp-1961.

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