Butler v. Crown Cork & Seal Co.

Court of Appeals of Georgia

Butler v. Crown Cork & Seal Co.

128 S.E. 15, 34 Ga. App. 28, 1925 Ga. App. LEXIS 10

CourtCourt of Appeals of Georgia

DecidedMay 14, 1925

Docket16145

StatusPublished

This text of 128 S.E. 15 (Butler v. Crown Cork & Seal Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. Crown Cork & Seal Co., 128 S.E. 15, 34 Ga. App. 28, 1925 Ga. App. LEXIS 10 (Ga. Ct. App. 1925).

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Opinion

Bloodworth, J.

(After stating the foregoing facts.) As stated therein, the original petition in this case is a suit “on an open account.” The affidavits attached to the account are in keeping with this view of the case. Such a suit is based upon the sale and delivery of merchandise and the refusal of the purchaser [29]*29to pay therefor. The cause of action is the refusal of the purchaser to pay for the goods bought, after delivery. Such a petition can not be changed by amendment into a suit under section 4131 of the Code'of 1910, and based upon the refusal of the purchaser to accept the goods after buying them. The facts in this case easily differentiate it from the majority opinion in the case of Rowland Company v. Kell Company, 27 Ga. App. 107 (108 S. E. 602), relied on by defendant in error. In Pittman v. Hodges, 13 Ga. App. 26 (78 S. E. 688), this court held: “The suit can not by amendment be changed from one to recover the price of goods sold on open account to an action for damages for the breach of a contract. ' Such an amendment would introduce a new cause of action and present issues which could not arise under the cause of action originally declared on. See Groover v. Tattnall Supply Co., 10 Ga. App. 679 (73 S. E. 1083); Hartwell Ry. Co. v. Kidd, 11 Ga. App. 771 (74 S. E. 310).”

The court having erroneously allowed the amendment to the petition, the further proceedings were nugatory.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

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Bloodworth, J.

(After stating the foregoing facts.) As stated therein, the original petition in this case is a suit “on an open account.” The affidavits attached to the account are in keeping with this view of the case. Such a suit is based upon the sale and delivery of merchandise and the refusal of the purchaser [29]*29to pay therefor. The cause of action is the refusal of the purchaser to pay for the goods bought, after delivery. Such a petition can not be changed by amendment into a suit under section 4131 of the Code'of 1910, and based upon the refusal of the purchaser to accept the goods after buying them. The facts in this case easily differentiate it from the majority opinion in the case of Rowland Company v. Kell Company, 27 Ga. App. 107 (108 S. E. 602), relied on by defendant in error. In Pittman v. Hodges, 13 Ga. App. 26 (78 S. E. 688), this court held: “The suit can not by amendment be changed from one to recover the price of goods sold on open account to an action for damages for the breach of a contract. ' Such an amendment would introduce a new cause of action and present issues which could not arise under the cause of action originally declared on. See Groover v. Tattnall Supply Co., 10 Ga. App. 679 (73 S. E. 1083); Hartwell Ry. Co. v. Kidd, 11 Ga. App. 771 (74 S. E. 310).”

The court having erroneously allowed the amendment to the petition, the further proceedings were nugatory.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

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Bluebook (online)

128 S.E. 15, 34 Ga. App. 28, 1925 Ga. App. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-crown-cork-seal-co-gactapp-1925.

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