Moss & Co. v. Fortson

Atkinson, Justice. Two causes of action were stated in the declaration before the ninth paragraph was stricken by amendment. That [499] 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.