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Lawskills.com Georgia Caselaw
SOUTHERN HOME CONTRACTORS, INC. et al. v. ROYAL et al.
40862.
FRANKUM, Judge.
Action on account. Richmond Superior Court. Before Judge Killebrew.
1. The petition, as finally amended, purports to set forth a cause of action on open account against "Southern Home Contractors, Inc.," "Home Finance Company," and "R. R. McLarty." However, attached to the petition is a bill of particulars in the form of several invoices, each of which shows that the materials alleged to have been purchased by the defendants named in the petition were in fact "Sold to Southern Home Contractors, Conyers, Ga.," and delivered to "same." When considered on general demurrer and construed most strongly against the plaintiff, the amended petition thus fails to show that the materials were sold to or delivered to and received by any of the defendants named therein, and no liability on the part of any of the defendants named is shown. Williams v. Appliances, Inc., 91 Ga. App. 608 (4) (86 SE2d 632).
2. Whether or not the second amendment, which struck from the petition the name of "Southern Home Contractors of Alabama, Inc." as defendant and added in lieu thereof the name of "Southern Home Contractors, Inc.," was subject to the demurrer thereto on the ground that it attempted to substitute one party defendant for another party defendant is not presented since the subsequent amendment to the petition alleges that the use of "Southern Home Contractors of Alabama, Inc." in the place of "Southern Home Contractors, Inc." in the original petition was a misnomer. And the sufficiency of this allegation is not drawn in question by demurrer.
3. The grounds of demurrer to the allegations of the amended petition respecting the interlocking corporate connection of the defendant corporations, the interest therein of the individual defendant named in the petition, and the unjust enrichment of the second corporate defendant and of the individual defendant because of the failure of the first corporate defendant to pay the indebtedness allegedly sued on should have been sustained, inasmuch as these allegations were vague and indefinite and were conclusions of the pleader unsupported by any facts alleged.
4. The court erred in overruling the general demurrer to the amended petition and all of the grounds of special demurrer filed to the last amendment thereto.
C. C. Royal and Company, a partnership consisting of C. C. Royal and E. M. Royal, filed suit in the Superior Court of Richmond County, naming therein "Southern Home Contractors of Alabama, Inc." as defendant number one; "Home Finance Company" as defendant number two; and "R. R. McLarty" as defendant number three. The defendants filed general and special demurrers to the petition. The petition was amended three times, the demurrers being renewed and additional grounds of demurrer being filed after each amendment. As finally amended the petition alleged: "Now comes the plaintiff in the above styled case and with leave of the court first had, files this, its amended petition as a whole, and shows that the original petition named Southern Home Contractors of Alabama, Inc., as one of the defendants, which was a misnomer; the real party being Southern Home Contractors, Inc., which misnomer plaintiff has corrected by amendment so that the petition, as completely amended, will read as follows: This the petition of C. C. Royal and Company, a partnership consisting of C. C. Royal and E. M. Royal of Aiken, South Carolina, brings this action against Southern Home Contractors, Inc., hereinafter called defendant No. One, Home Finance Company, hereinafter called defendant No. Two, and R. R. McLarty, hereinafter called defendant No. Three, and respectfully shows to this court: 1. Defendant No. One is a corporation doing business in Georgia with its principal office in Augusta, Georgia, and is subject to the jurisdiction of this court; defendant No. Two is a corporation doing business in Georgia with its principal office in Augusta, Georgia, and is subject to the jurisdiction of this court; defendant No. Three, a natural person, president of defendants No. One and No. Two, is a resident of Richmond County, Georgia, and is subject to the jurisdiction of this court. 2. Defendants are indebted to the plaintiff in the amount of eleven thousand, nine hundred fifty-seven and 83/100 ($11,957.83) dollars, as hereinafter set forth. 3. From January 19, 1961, defendant No. One and defendant No. Three, as president of defendant No. One, purchased on an open account from the plaintiff 137,885 feet of lumber as is more fully shown on certain invoices hereto attached, marked Exhibit 'A', and by reference made a part of this petition. 4. The purchase price of said lumber is eleven thousand, nine hundred fifty-seven and 83/100 ($11,957.83) dollars, which defendants have refused to pay, said purchase price being computed as follows: Between the dates of January 19, 1961, and February 9, 1961, plaintiff did sell to defendant No. One 137,885 feet of lumber for the price of eleven thousand, nine hundred fifty-seven and 83/100 ($11,957.83) dollars as shown on the invoices attached hereto and marked Exhibit 'A'. 5. Defendant No. Three is the president and general manager of defendant No. One and defendant No. Two. That neither defendant No. One nor defendant No. 2 maintained separate legal entity in the form of books, accounts, ledgers, officers, offices, or personnel; on the contrary, said defendants No. One and No. Two have the same corporate officers, joint offices and joint personnel. 6. Defendant No. Two, by its interlocking corporate connections with defendant No. One and because of the association of all three
defendants in financial matters, has benefitted from the unjust enrichment the purchase of said lumber by defendant No. One and defendant No. Three. 7. The plaintiff has not been paid by any of the defendants for said lumber and the purchase of said lumber without payment has unjustly enriched all three defendants. 8. All three defendants are operating together without regard for their alleged legal entities, have failed to maintain separate records, books, accounts, inventories, ledgers, or other reports of this sort normally kept in business."
The defendants filed joint general and special grounds of demurrer to the amended petition in which all previous grounds of demurrer were renewed, and by special demurrer attacked particularly the allegations of paragraphs 6, 7, and 8 of the petition, on the grounds that the same were vague and indefinite in that it was not stated therein in what manner the two defendants had interlocking corporate connections; in what association all three defendants had participated; in what financial matters all three defendants were associated; and on the ground that said allegations were conclusions without facts pleaded to support them. The trial court overruled all grounds of demurrer, and the exception is to that judgment.
Hull, Willingham, Towill & Nonnan, A. Rowland Dye, contra.
Thurmond, Hester, Jolles & McElmurray, Isaac S. Jolles, for plaintiffs in error.
DECIDED JANUARY 5, 1965.
Friday May 22 21:16 EDT


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