4815 | Ga. Ct. App. | Jun 25, 1913
Hodges sued Pittman on an open account. The petition was in the usual form, alleging indebtedness in the sum of $355, besides interest, on an account, a copy of which was attached to the petition. The account contained a number of items for sums paid for machinery,- fixtures, etc., and other items, under different dates, of divers quantities of syrup. The plaintiff offered an amendment setting up that the plaintiff furnished to a partnership, of which he and defendant were members, certain money and articles as shown in the bill of particulars attached to the petition, and that the defendant contracted to pay to the plaintiff the sums set forth in the account, for the plaintiff’s interest in the partnership business; that the plaintiff did surrender his said interest, and the defendant failed and refused to pay the amount agreed on. An objection to this amendment, on the ground that it set forth a new cause of action, was overruled, and the plaintiff recovered a verdict. The case is here upon a bill of exceptions assigning error upon this ruling and upon the overruling of a motion for a new trial.
As the petition stood before amendment, the suit was one to recover for money paid for the use of the defendant, and to recover for goods sold and delivered to him. The law implied a promise by the defendant to reimburse the plaintiff for the sums expended, and to pay for the goods received by the defendant. There may, however, have been an express promise to pay, but this would not have prevented recovery on the account. Hence it is that in a suit on an open account for goods sold and delivered, the petition may be amended by alleging a special contract and setting forth the terms and conditions of the promise. Such an amendment is, however, allowable only for the purpose of alleging the pertinent facts and circumstances under which the sale and delivery were made, and not for the purpose of counting upon the contract as a distinct cause of action. Tumlin v. Bass Furnace Co., 93 Ga. 594 (20 S.E. 44" court="Ga." date_filed="1894-03-19" href="https://app.midpage.ai/document/tumlin-v-bass-furnace-co-5565524?utm_source=webapp" opinion_id="5565524">20 S. E. 44); May Mantel Co. v. United States Blow-Pipe Co., 93 Ga. 778 (21 S. E. 142); Ala. Const. Co. v. Continental Car Co., 131 Ga. 365 (62 S. E. 60). The suit can not by amendment be changed from one to recover the price of goods sold on