9 S.E.2d 126 | Ga. Ct. App. | 1940
The petition as amended did not set forth a cause of action, and the court properly sustained the general demurrer.
The plaintiff contends that the overruling of the general demurrer to the original petition adjudicated that it set forth a cause of action for money had and received, and that the court erred in sustaining the general demurrer, filed at a subsequent term of court, to the petition as amended. As a general rule, all demurrers must be filed at the first term, but "an amendment to a petition which materially changes the cause of action, made at any stage of the case, opens the whole petition to demurrer at that time. Aliter, when the amendment makes no material change in the cause of action." Kelly v. Strouse,
Furthermore, any conclusion on the part of Greeno that he had deceived the plaintiff would not be decisive of that issue; and with no more facts shown than that he promised to obtain a loan for the plaintiff if he would give a binder to bind the trade for the undescribed property, this court could not, in the absence of any allegation that the plaintiff had made it possible for the defendant Greeno to carry out his promise by the plaintiff acquiring title so as to authorize the grant of a loan to him, agree that such a conclusion was warranted or binding on such defendant. Again, it is shown by the petition as amended that Greeno "offered from time to time to make restitution" to the plaintiff; and no reason is shown why the plaintiff did not accept such offer to return the $100, instead of bringing suit. As to the defendant Brown, it is not alleged that he had anything whatever to do with the act of Greeno in promising to effect a loan on the property if bought. So far as the petition as amended discloses, no reason is assigned why the $100 should be returned to the plaintiff, as it is not even alleged that the loan was not obtained. If it is sought to set forth a cause of action for breach of contract with respect to the sale of any property, it must be said that it is not alleged that Brown refuses to go forward with the trade, or that Greeno is obstructing its consummation; and as to the procurement of a loan it is not shown, as above mentioned, that the plaintiff has made it possible for the defendant Greeno to effect the same. In any view of the allegations of the petition as amended, no cause of action was set forth. The court properly sustained the general demurrer. *618 Judgment affirmed. Stephens, P. J., concurs. Felton, J.,concurs specially.