J. C. Pirkle MacHinery Co. v. Lester

I think the first contention of the plaintiff in error is well taken. "Although in code States pleadings are to be liberally construed so far as concerns matters of form, it is of course obvious that this rule does not dispense with the necessity of pleading; and so, under this rule essential averments lacking in a pleading can not be construed into it." 21 Rawle C. L. 466, § 32. "The court, in passing on the sufficiency of the allegations to make out a case, should keep in mind the principle that every material fact which goes to constitute the plaintiff's cause of action must be alleged; that is, he must sufficiently allege every fact which he would be required to prove in order to recover. Groover v. Simmons,163 Ga. 778 (137 S.E. 237)." Gulf Life Insurance Co. v.Davis, 52 Ga. App. 464, 466 (183 S.E. 640). In the instant case, the petition alleged a breach of a brokerage contract whereby the defendant was to find a buyer and consummate the sale of certain machinery and that the 10% commission was to be split fifty-fifty between plaintiff and defendant, "less whateverexpense had been incurred in negotiating and closing said sale." The petition failed to set out the amount of expense, if any, incurred by the defendant in consummating the sale. The complaint does, however, allege a notice to produce all records and transactions relating to the sale from which an inference might be drawn that plaintiff was ignorant of the amount of the expense, if any, incurred by the defendant since such knowledge was solely in defendant's possession, but as has been stated above, essential averments cannot be construed into the petition but must be expressly alleged. While this rule of pleading may be different in other jurisdictions in that facts resting peculiarly within the knowledge of the opposite party may be entirely omitted from a petition, the rule in this State, as I understand it, is that material facts must be alleged even though in general terms or if petitioner is ignorant of those facts he must expressly say so and give the reason for failing to allege them. "Many facts especially those resting peculiarly within the knowledge of the opposite party, may be alleged in general terms;but they should be alleged as facts, not merely as legal conclusions." Cedartown Cotton Export Co. v. Miles, 2 Ga. App. 79 (58 S.E. 289). [Italics ours.]

In the case at bar the petition failed to allege the amount of *Page 517 the expense incurred or that the information was solely in the possession of the defendant and that for that reason plaintiff was unable to allege same. Construing the petition most strongly against the pleader, it fails to set forth a cause of action and is subject to a general demurrer. Under the allegations of this petition the expenses could have been greater than the amount of the commissions earned, and if this be the case then the plaintiff would have no cause of action against the defendant. The petition should have alleged specifically that the expense incurred was less than the commissions in order to show an amount due the plaintiff. The effect of the majority ruling is to presume that the expenses were less than the commissions, as against a general demurrer.