Collins v. Lyon, Lyon & Co.

Almand, Justice. David Collins, the plaintiff in error, filed his petition in the Superior Court of Richmond County for an accounting against Lyon, Lyon & Company, the defendant in error. In substance the petition alleged: that on January 31, 1958 the plaintiff in error transferred a described tract of land to the defendant by security deed to secure a promissory note of $7,500; that on November 14, 1958 the plaintiff transferred a described tract of land to the defendant by security deed to secure a promissory note of $3,000; that over a period of four [434] years the plaintiff shipped 211 bales of cotton to the defendant and the defendant has not accounted for the bales even though the plaintiff has demanded an accounting on several occasions; that plaintiff has sent to defendant a $2,000 bill for delivering fertilizer, but defendant has refused to pay any portion of the bill; that there was an outstanding security deed on the land conveyed by the security deed of January 31, 1958, and the defendant satisfied this security deed by paying $13,554.12 on November 30, 1959, to the widow of the grantor of the outstanding security deed; that from April 7, 1961, through May 11, 1962, plaintiff’s employer turned over plaintiff’s earnings to the defendant to be applied to any loan which plaintiff had with defendant, and that the total amount turned over to defendant during this period was $2,957.28, and that plaintiff has not received an accounting of this money although he has demanded an accounting from the defendant; that under the powers of sale in the security deeds of January 31, 1958, and November 14, 1958, the defendant sold the land described in said security deeds and received $14,000 in cash, and at the same sale the defendant purchased all of the remaining property described in the security deed of November 14, 1958, and has not accounted to plaintiff for the amounts of said sale over and above the original loan; that all records of the bales of cotton were kept at the principal jnlace of business of the defendant, and that the plaintiff has never been allowed to see these records for the purpose of examination although he has made several demands to do so; that on information and belief the value of each bale of cotton was at least $150, the exact value being unknown to plaintiff; that plaintiff has no adequate remedy at law; that the defendant not only took 211 bales of cotton with an approximate market value of $31,000 and has never accounted to plaintiff for said amount, but defendant also sold the various properties described in the petition and reaped a profit of more than $19,000, and the defendant should be required to account to plaintiff for such moneys over and above the loans made by defendant on January 31, 1958, and November 14, 1958, and in order that the accounting may be ■ done properly, the defendant should be required to show the actual market value of the 211 bales of cot [435] ton. The prayers were for: (1) an injunction restraining the defendant from removing or destroying the records of his business; (2) the appointment of an auditor to determine what amounts were due to plaintiff from the defendant; (3) judgment for the amount due; (4) an accounting from the defendant of the market value of the bales of cotton and (5) process. The bill of exceptions assigns error on the order sustaining a general demurrer to the petition. The general demurrer was filed on the ground that: (1) the petition states no cause of action; (2) it appears from the petition that plaintiff has an adequate remedy at law; (3) there is no allegation of how much plaintiff owed defendant when the described’ property was sold; (4) the security deeds contained open-end clauses, and it was not alleged that there was no other indebtedness secured by the deeds. We are of the opinion that the ptetition states a cause of action for an accounting and that the trial court erred in sustaining the general demurrer. In Southern Feed Stores v. Sanders, 193 Ga. 884 (2) (20 SE2d 413), it was held: “A petition for accounting, in which the plaintiff sets out facts indicating that something would be found due to him and resorts to equity to preserve the records of the business, which are in possession of the defendant, from removal or destruction pending the accounting, is not subject to dismissal on general demurrer on the ground that it alleges no cause of action, nor is it subject to special demurrer calling for a bill of particulars for the exact amounts.” See also the cases cited in Division 2 of the Southern Feed Stores opinion, and Martin Distributing Co. v. Roberts, 219 Ga. 525 (3) (134 SE2d 587). The allegations in the amended petition, taken as a whole, are sufficient to show that the several sums received by the defendant from the sale of the land, the bales of cotton and other items of indebtedness alleged to be due the plaintiff by the defendant exceeded the total amount of the debts owed by the plaintiff to the defendant that were secured by the loan deeds. From the above cited cases, it appears that grounds 1, 2, and 3 of the general demurrer are without merit. As to ground 4, that the plaintiff failed to allege that there was no other indebtedness secured by the security deeds, the plaintiff is not [436] required to allege this in his petition, this being a matter of defense. Reid v. Caldwell, 120 Ga. 718 (5) (48 SE 191). The trial court erred in sustaining the general demurrer. Judgment reversed. All the Justices concur, except Duckworth, C. J., and Grice, J., who dissent.