Clarke v. Upchurch

Stephens, J. 1. The petition here alleging a cause of action for a breach of a contract and praying for an accounting by the defendant for the purpose of ascertaining the amount due by virtue of the alleged breach, and not alleging that the accounting sought is mutual, or that there was any fiduciary relation between the parties, but alleging only a duty on the part of one of the defendants to pay to the plaintiff a certain percentage on collections made by the defendant from third persons, the amount of which is within the defendant’s knowledge, the proceeding is one for an accounting at law and not for one in equity. Burress v. Montgomery, 148 Ga. 548 (97 S. E. 538). This court therefore has jurisdiction. 2. Where one of the parties to a contract has breached the same and failed to perform, to the damage of the other contracting party, the liability of the party breaching to respond to the other in damages is not dependent upon a demand to so respond, in the absence of any provi [602] sion in tlie contract requiring such a demand as a condition precedent to liability. Civil Code (1910), §5512. Decided February 9, 1924. Westmoreland & Smith, Etheridge, Sams & Etheridge, B. 11. Sullivan, for plaintiffs in error. W. H. Terrell, contra. 3. The demurrers interposed by the defendant having been overruled, and the plaintiffs insisting upon a reversal of the judgment overruling the demurrer, solely upon the ground that no such demand had been made upon the defendants, the judgment overruling the demurrer will be affirmed. Judgment affirmed. Jenkins, P. J., and Bell, J., eoneur.