"`To be subject to general demurrer, a petition must be utterly lifeless.' Medlock v. Aycock, 16 Ga.App. 813 (86 SE 455)." Gunby v. Turner, 194 Ga. 378, 381 (2) (21 S.E.2d 640); Johnson v. John Deere Plow Co., 214 Ga. 645, 647 (1) (106 S.E.2d 901). While a promise may be a mere nudum pactum when made because it is lacking in mutuality, it may become binding on the promisor when the promisee furnishes the consideration contemplated by the promise. Peeples v. Citizens Nat. Life Ins. Co., 11 Ga.App. 177 (74 SE 1034); Ness v. Barber, 27 Ga.App. 417 (108 SE 812); Brown v. Bowman, 119 Ga. 153 (1) (46 SE 410). Even part performance by the promisee
It is clear that the contract here sued on was contemplated by the parties to be a severable one since the plaintiff alleges in his petition that the royalty fee of three-fourths of one percent of the material package price of each unit sold was to be paid by the defendant Knox Corporation on the first day of each month. Code § 20-112. Plaintiff, therefore, appropriately brought his action against the defendants for all breaches occurring up to the commencement of the action. Code § 20-1401.
While plaintiff alleged in his petition that he was entitled to an equitable accounting from the defendant in order to establish the monetary sums due him on the royalty agreement, this is insufficient to give equity jurisdiction to order an accounting, and since plaintiff alleges further that the number of units sold and the amount due him are peculiarly within the knowledge of the defendants, a plain case for a legal accounting is made. Burress v. Montgomery, 148 Ga. 548 (3) (97 SE 538); Code § 10-102.
The petition in this case was not utterly lifeless. The defendants
Judgment reversed. Felton, C. J., and Pannell, J., concur.