52 Ga. 576 | Ga. | 1874
The plaintiff brought an action against the defendant on an open account, in the statutory form, for the sum of $1,738 2§, with a bill of particulars thereto attached. The defendant filed a plea in the nature of an equitable set-off, in which he alleged that the several items charged in plaintiff’s account were paid by him, and so intended to be paid by plaintiff to defendant, for his half interest in certain described mill property, known as the Davenport mills, and that plaintiff is indebted to him, and prays judgment in his favor for the amount that may be found to be due him. The plaintiff, at the trial, amended his declaration, in which he alleged the defendant was indebted to him the sum of $1,750 00 for the one-half interest in the Davenport mill property, which he had purchased of the defendant, and took possession thereof; that he was turned out of possession by paramount title and by sale of the property, by which he was deprived of the title and possession of said property. The defendant demurred to the amended declaration because it introduced a new and distinct cause of action, and because it was not alleged therein that the defendant had warranted the title to the land. The court overruled the demurrer, and the defendant excepted. The case was then tried, and the jury found a verdict for the plaintiff for $1,473 58 with interest. ,A motion was made for a new trial on the ground that the court overruled the defendant’s demurrer to the plaintiff’s amended declaration, and on the several other grounds set forth in the motion, all of which were overruled by the court, and the defendant excepted. It appears from the record that the plaintiff offered in evidence, at the trial, a deed from the executors of James Morris to McDonald, the defendant, conveying to him the one undivided half of the Davenport mill property, which deed is dated 15th of November, 1866, recorded in July, 1868; also a deed from the executors of Morris to the plaintiff for one-half interest in •
1. The plaintiff’s action, as originally brought, was for an unliquidated demand. When the defendant filed his plea, the plaintiff amended his declaration by alleging that the defendant was indebted to him for so much money paid him under a contract for the purchase of certain mill property, of which he took possession ; that he had been turned out of the possession thereof by paramount title, and treating the contract as rescinded for that reason, sought to recover back the purchase money he had paid the defendant for the property so purchased. The original cause of action being for an unliquidated demand, and the amendment being also for an unliquidated demand, the two demands embraced in the original declaration and the amended declaration; were germane to each other, and under the liberal construction heretofore given to the statute applicable to such cases by this court, there was no error in overruling the demurrér to the amendment.
2. It appears from the evidence that the plaintiff purchased the mill property from the defendant under a parol contract, went into possession thereof, and has paid the purchase money
Let the judgment of the court below be reversed.