Rentz Drug Co. v. Bishop-Babcock Co.

Bell, J. This was an action upon promissory notes, and the defendants assign error upon the action of the court upon special demurrer, in striking their answer as amended and in thereupon entering up judgment for the plaintiff. Reid-. 1. The sole insistence in the brief of the plaintiffs in error being that the answer as amended was a good “ plea of payment,” and that for this reason the demurrer was improperly sustained, other grounds of the plea are treated as abandoned. 2. “A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is insufficient, and, unless amended, should be stricken, upon demurrer, timely filed, specifically pointing out these defects.” Groves v. Sexton, 5 Ga. App. 160 [392] (1) (62 S. E. 731); Thomas v. Siesel, 2 Ga. App. 663 (5) (58 8. E 1131); Montgomery v. King, 125 Ga. 388 (3) (54 S. E. 135). Decided June 25, 1923. J. II. Tipton, Smith & Christian, for plaintiff in error. B. C. Ellis, Bidgdill & Mitchell, contra. 3. Whether the answer as insisted upon was fatally defective for a reason not stated in the demurrer, in that it was an attempt to vary the unconditional promise of the note to pay in money, by pleading a contemporaneous agreement, not alleged to be in writing, that payment might be made in something else (Kerr v. Holder, 13 Ga. App. 9 (4), 78 S. E. 682; Shores-Mueller Co. v. Fitzpatrick, 23 Ga. App. 251 (2), 98 S. E. 228), and irrespective of the applicability to this case of the rule that a judgment right for any reason will be affirmed regardless of the reason assigned (Crittenden v. Southern Home Building & Loan Asso., 111 Ga. 266 (5), 36 S. E. 643; Linder v. Whitehead, 116 Ga. 206 (2), 42 S. E. 358), the plea was lacking in some of the above-mentioned ■ requisites of a proper plea of payment, and, as such, was subject to the special demurrer pointing out the defect. 4. The judgments complained of were not erroneous for any reason urged. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.