Gardner v. Consolidated Loan & Finance Co. of Atlanta, Inc.

Eberhahdt, Judge. Plaintiff, a furniture dealer, sued defendant finance company to recover aanounts of reserve held on notes discounted to the finance coonpany. It is alleged that part [582] of the money is due because the notes involved have either been paid in full or renegotiated by defendant and as to the remainder that the defendant deducted these amounts from the reserve. Two of the finance company’s special demurrers were sustained, one of them being that the contract relied on is neither set forth in substance nor is a copy attached. The plaintiff refused to amend and the petition was dismissed. Held: While the defendant may not, by special demurrer require plaintiff to allege whether the contract declared upon was in writing, and all that is required is that the petition incorporate therein the contract, or a statement of the pertinent and material provisions thereof, or attach a copy, Code § 81-105, Southern Land &c. Corp. v. Davis & Floyd, Engineers, Inc., 109 Ga. App. 191, 198 (3) (135 SE2d 454), yet, if from the allegations of the petition it is obvious that there are pertinent and material provisions of the contract which are not pleaded a demurrer calling for them will lie. Social Benevolent Society v. Holmes, 127 Ga. 586 (3) (56 SE 775); Mullin v. City of St. Marys, 16 Ga. App. 465 (85 SE 683); Georgia, A. &c. R. Co. v. Atlantic C. L. R. Co., 79 Ga. App. 837 (54 SE2d 492). The petition alleged that defendant, under provisions of an assignment contract, deducted certain sums from notes assigned or discounted by plaintiff to defendant and that the fund was held “to offset any losses by defendant by reason of said assignment” of the notes. A list of notes assigned and from which deductions for the reserve fund were made was attached as Exhibit A (though it was not alleged that those listed were all of the notes assigned or discounted under the agreement) and it was alleged that all of those listed had been paid in full “or else the defendant has renegotiated said note and secured another note in its place.” 'If the defendant is not entitled to hold the reserve fund against losses on notes that have been renegotiated or renewed, or against other notes than those listed that may have been assigned or discounted, some provision of the contract must deny that right, but none was pleaded. It was alleged that of the total sum sought to be recovered “defendant owes petitioner $6,378.41 by reason of deductions from [the] reserve fund” in that amount. Since it was alleged that the fund was to be held as an offset against losses [583] by reason of the assignment, in construing the petition on demurrer it must be presumed that the deductions were made to cover losses that had been sustained and if there are circumstances under which plaintiff is nevertheless entitled to recover for the deductions made these must appear from the provisions of the contract, but none was pleaded. Submitted March 2, 1965 Decided April 21, 1965. William T. Brooks, for plaintiff in error. Thomas E. Moran, contra. The liability of the defendant must be measured by contract provisions in these as well as other areas and when the plaintiff was called upon by demurrer to plead them it should have been done. City of Atlanta v. J. J. Black & Co., 110 Ga. App. 667, 671 (139 SE2d 515). Plaintiff made no effort to excuse himself from pleading the provisions by asserting that the contract was in defendant’s possession, or that its terms and provisions were peculiarly within defendant’s knowledge, nor was profert of the contract made. The demurrers were properly sustained, and since plaintiff offered no amendment to meet them there was no error in dismissing the petition. Judgment affirmed. Nichols, P. J., Bell, P. J., Frankum, Jordan, Hall and Russell, JJ., concur. Felton, C. J., concurs specially. Pannell, J., dissents.