The first question for consideration relates to the court’s overruling of a motion by the plaintiff to strike the demurrers, plea of non est factum, answer and cross-action of the Miami Butterine Company, filed on February 17, 1937, on the ground that they were too late. The action was returnable to the November term, 1936, and the demurrers, general and special, plea, answer and cross-action were not filed at that term, but at the next succeeding term. “All demurrers and pleas shall be filed at the first term.” Code, § 81-301. “In all cases demurrer, pleas, and answer shall be disposed of in the order named, and all demurrers and pleas shall be determined at the first term, unless continued by the court or by consent of parties.” § 81-1002. There being no demurrer, plea of non est factum, answer, or cross-action filed at the first term, the determination of such pleadings could not be “continued” by the court beyond that term. The Code, § 110-401, declares: “In all eases, the judge at each term shall call the appearance docket upon some day previously fixed or on the last day of the term, and upon such call all eases in which the defendant has not filed a demurrer, plea, answer, or other defense shall be marked fin default’ on the docket.” It is true that this court in construing this last quoted section has held: “Where the case has never been marked fin default’ on the docket, nor any order taken declaring the case to be fin default,’ it is error to dismiss an answer to the merits of the cause, filed at a term subsequent to the appearance term, because not filed in time.” Hall v. Tiedeman, 141 Ga. 602 (81 S. E. 868); McKenzie Co. v. Consolidated Lumber Co., 142 Ga. 375 (82 S. E. 1062). Compare Glass v. Allen, 141 Ga. 30 (80 S. E. 284); Hodnett v. Stewart, 131 Ga. 67 (2), 68 (61 S. E. 1124); Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131) ; Clifton v. Fiveash, 122 Ga. 383 (50 S. E. 134); Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297). But those eases differ on their facts from the instant case, in that in the cases just referred to and quoted from no defense of any kind was filed at the appearance term, whereas in the case now before us the
In Chambless v. Livingston, 123 Ga. 257 (51 S. E. 314), while the defendant filed at the appearance, term his general denial- of the plaintiff’s allegations, which was demurred to on the ground that it did not answer the allegations of the petition paragraph by paragraph, and did not fully and distinctly set forth any defense, and the plaintiff prayed that said plea and answer be stricken, it appears from the record in that case that the plaintiff’s demurrer and motion to strike was not called to the court’s attention until after the defendant had filed his amendment to his answer at the second term, in which he met the plaintiff’s demurrer. In Quillian v. Johnson, 122 Ga. 49 (3) (49 S. E. 801), this court held: “Notwithstanding a defendant may file a plea in abatement at the first term, he can not, by way of amendment to the plea at the trial term, set up new and distinct grounds why the action should abate, unless the plaintiff has so amended his pleadings as for the first time to make available the matters of defense sought to be urged by an amendment to the defendant’s plea.” In Maddox v. Central of Georgia Ry. Co., 110 Ga. 301 (2) (34 S. E. 1036), nothing to the.
It is submitted that there is nothing illogical in holding that although when the defendant files no defensive pleading, and the case has not been adjudged in default, he may at a subsequent term. file.
While the writing attached to the petition as an exhibit purports to bind the Miami Butterine Company to make F. & F. Company Inc. and its assigns exclusive distributor of its products, and quotes prices therefor, one may look in vain for any promise of F. & F. Company Inc. that it will purchase or distribute any of such products. 'It does agree “to stand all costs of distribution, advertising, and promotion," etc., and “agrees not to act as wholesale distributor for any other brand of margarine during the life of this agreementbut this is a far cry from any obligation on its part to accept from the other party any specified amount of its products, or to sell or distribute the same. In Huggins v. Southeastern Lime & Cement Co., 121 Ga. 311 (48 S. E. 933), the writing contained a recital that “Messrs. JV H. Huggins & Son agree, in accepting the agency of the Leghigh Portland Cement, to
The result is not altered from the fact that the writing contains a recital, “that for and in consideration of the sum of one ($1.00) dollar exchanged between the parties,” etc. Here we do not even have “the fictitious dollar of the law,” for there is no statement that a dollar was ever paid or promised, as was the case in Southern Bell Telephone &c. Co. v. Harris, 117 Ga. 1001 (44 S. E. 885), but merely that a dollar was exchanged between the parties, with the purpose, no doubt, of supposing that this would give color to the transaction. Before there can be a consideration in money which the law will recognize, the party must either part with money or promise to do so; and a mere swapping of dollars will not suffice. When a dollar is handed from one to the other, and the same dollar or another one is returned in its stead, this is an exchange of dollars, but in reality nobody has paid anything or promised to do so. And this is all that the recital in this agreement means. Justice is sometimes represented as being blind; but the law is able to see through such a subterfuge as this, and to denominate it, as it is, “airy nothingness,” so far as furnishing any consideration for the agreement.
The action should have been dismissed on general demurrer. All subsequent rulings in the ease were nugatory.
Judgment reversed on the main hill of exceptions; affirmed in part and reversed in part on the cross-hill.