Martin v. Mayer , 63 Ga. App. 387 ( 1940 )

I think the motion to dismiss should have been sustained. The order that the petition should stand dismissed unless amended provided, in addition to the provisions set out in the majority opinion, as follows: "Only the parts of the demurrer which have reference to the foregoing requirements are now passed upon; but those parts are hereby sustained, and the plaintiff is required to amend as herein indicated within thirty days from this date, in default of which the petition will stand dismissed." (Italics mine.) The amendment to the petition within the thirty days allowed did not meet the requirements of the judge's order in one particular, in that it did not allege who employed the plaintiff to render the services. I do not agree with the majority that such an allegation was not required by the demurrers; but whether it was or was not is immaterial. The trial court adjudged by its order that the allegation was essential, and such adjudication became the law of the case, which in the absence of a motion to modify it, made at the term at which it was rendered, the judge had no authority to change or modify at a subsequent term. What the judge may have thought the effect of his ruling was, and whether he thought his order required of the plaintiff more than the law authorized, would make no difference. He signed the order which speaks for itself, and the amendment does not meet it. The ruling in Wilson v. Elijah A. BrownCo., 62 Ga. App. 898 (10 S.E.2d 219), does not conflict with the views herein expressed, because in that case the judge did not provide, in his order dismissing the case unless amended within a certain time, in what particulars the petition had to be amended. He simply provided that unless the petition "be amended." In such a case it could not be ascertained just what amendment would save the petition. In this case the order very definitely showed how the petition was required to be amended.

Furthermore, I think the allegation as to who employed the plaintiff was necessary to the petition in both counts. Unless the wife employed the plaintiff as agent of the husband, or unless he was employed under such circumstances that the law implied a promise on the part of the husband to pay the debt on the theory that such amounted to employment by the wife as agent for the husband for necessaries, or unless the husband employed him either by himself or through an authorized agent, the husband would not be liable to the plaintiff unless the husband contracted to become liable subsequently for a consideration flowing to him or the person already liable for the debt. If the husband was not liable for the debt originally, his subsequent promises to pay would not make him liable in the absence of a present consideration, because the past consideration, the rendition of the services, would not constitute a valuable consideration which may be the basis for a binding contract. The guarded, evasive allegations of the petition do not amount to an allegation that the defendant employed the plaintiff to render the services. For these two reasons I think the defendant's motion should have been sustained, and the action dismissed on the failure of the plaintiff to make the required amendment.