23 S.E.2d 411 | Ga. | 1942
1. Where the trial judge has overruled a general demurrer and his judgment is reversed by the reviewing court, the plaintiff may, before the remittitur from the reviewing court is made the judgment of the trial court, amend his petition as if no judgment had been rendered; otherwise where the reviewing court affirms a judgment sustaining a general demurrer.
2. Plaintiff's amendment to his original petition, which sought specific performance of an oral promise to give the plaintiff certain lands, which amendment struck the allegations held in Milton v. Milton,
3. The amendment setting up an additional count to the petition, in which the plaintiff sought to declare upon the same transaction, as set forth in the first count, and in which the transaction was construed and asserted by the plaintiff as a contract of purchase and sale and not as a gift, did not seek to declare upon and add to the petition a new cause of action, but was merely a different statement of how arose this same duty on the part of the defendant, i. e., the duty to convey the described lands to the plaintiff. Thus the plaintiff, declaring upon the same cause of action but stating its origin in a different way, could do so by amendment, as if done in a separate count originally.
4. The amendment setting up a second count containing elements to make it complete within itself, as a cause of action based upon a contract for the sale and purchase of land, was sufficiently certain and definite to meet the challenge of a general demurrer.
1. When the case was heard before. the judge overruled the demurrer challenging the plaintiff's right to recover. This ruling was reversed; and therefore, until the judgment of this court was made the judgment of the court below, the plaintiff had the right to amend. Code, § 81-1301; Mills v. Boyd LumberCo.,
2. As pointed out when we considered the case on the original pleadings (
The weakness we found in the original petition was that it in substance made the plaintiff a tenant and his father the landlord; and this was considered as inconsistent with the theory of gift upon which he sought to recover. All reference to the rental was stricken by this amendment; and by the standard set forth above, the plaintiff has met the criticism, and has stated, in accordance with the rulings made in the former opinion and with the authorities there cited, a case for specific performance of a parol gift of lands. The necessary elements enumerated in our former decision fully appear, and are not now, in this count of the petition as amended, neutralized by the showing of this other relation which was thought to be fatal to his case.
3. It is earnestly argued that by his second count the plaintiff seeks to declare upon a new cause of action; and that, by the principles of estoppel and election of remedies, he may not now assert and recover upon a contract of purchase and sale, having once declared it to be a gift. The plaintiff's right to amend is as perfect in law now as it would have been before any judgment. See authorities cited supra. Originally he might have included in his petition two counts stating his case both ways, one upon the theory of gift and the other upon the theory of contract of purchase and sale. "The plaintiff may in different counts set out the same cause of action in various ways; and where the petition contains more than one count referring to the same transaction, *133
but differing one from another in substantial particulars as to the details of such transaction, it is not bad for duplicity."National Surety Co. v. Farmers State Bank,
"The plaintiff can not introduce an entirely new cause of action; but if he adhere to the original cause of action, he may add a count substantially different from the declaration."Maxwell v. Harrison,
In the present case the only real inquiry is to determine what is the cause of action upon which plaintiff seeks recovery. It is true an arrangement between parties which might be called a gift is totally different and contrary to one denominated as purchase and sale; but the cause of action, such as referred to inEllison v. Georgia Railroad Co.,
4. Having held that the plaintiff had the technical right to amend, that his amendment was germane and properly allowed as against objections already dealt with, did it then state a cause of action for specific performance as against a general demurrer? While it is true, as pointed out in our former decision, that "much strictness of pleading" is required in cases of this kind (Brogdon v. Hogan,
Judgment affirmed. All the Justices concur.