Frick Co. v. Lawson

¶1concurring specially. “A petition [or answer] which does not aver a time, as to every material or traversable allegation, is subject to special demurrer pointing out the defect.” Mandeville Mills v. Dale, 2 Ga. App. 607 (3) (58 S. E. 1060); Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (2), 376 (71 S. E. 691); Warren v. Powell, 122 Ga. 4 (49 S. E. 730). In the instant case the defendant alleged, in paragraph 20 of his original answer, that he “delivered the second saw to the plaintiff company in Atlanta, Georgia, as advised to do by agent of plaintiff company.” The plaintiff demurred specially to the paragraph, on the ground that it “fails to allege any date on which defendant delivered the second saw to plaintiff company as alleged, nor in what manner it was delivered.” The paragraph was not amended by the defendant, and the demurrer thereto was overruled by the court. Under the foregoing ruling it is obvious that the judgment on the demurrer was error, and, under the facts of the case, as disclosed upon the trial, it was reversible error for the following reason : If the defendant, had been required to amend paragraph 20 of his answer so as to show when he delivered the second saw to the plaintiff company, the amendment would have disclosed that it was returned in March, 1933, and the answer elsewhere showed that the defendant received the saw in April, 1930. Therefore, if the defendant had been required so to amend paragraph 20, the answer would have shown on its face that the defendant had kept and used the saw for nearly three years, without making any complaint about it to the plaintiff company, although he knew during all those months that it was defective. The answer would have further disclosed on its face that the defendant made payments on the saw, without complaint, for almost three years after he had found out that it was defective. It follows that the answer, if so *519amended, would not have set out any valid defense to the plaintiff’s suit, as the facts given therein would have shown a waiver by the defendant of any defects in the saw. It thus appears that the error in overruling the special demurrer in question was most harmful to the plaintiff and requires a reversal of the judgment. The error upon the demurrer rendered the further proceedings in the case nugatory.