Cain v. Brown

158 S.E. 776, 43 Ga. App. 366, 1931 Ga. App. LEXIS 366

• Court: Court of Appeals of Georgia
• Decided: May 15, 1931
• Docket: 21061
• Status: Published

Opinion

Jenkins, P. J.

In a suit for commissions on the sale of real estate, where the broker’s petition alleged that he had earned his commission on account of finding a purchaser for a parcel of land described as “lying and being on St. Simons Island, Glynn County, Georgia, containing 25 acres, more or less, and being a part of the tract commonly known as the ‘Black Banks tract’,” it was error to allow an amendment striking the original description in toto, and substituting in lieu thereof what on its face appears to fie a separate and distinct parcel of land, described by metes and bounds, but referred to as “lying and being on St. Simons Island, Glynn County, Georgia, containing 20.77 acres, being a portion of what was originally known as the Old Johnson tract,” and which neither in terms nor by the description therein in any way identifies or purports to identify the described parcel as being the same land described in the original petition. It follows that the exceptions taken pendente lite to the allowance of the amendment must be sustained, and that all action subsequently taken in the trial was nugatory.

An examination of the record discloses that in point of fact there was positive testimony that the “Black Banks” tract was not a part of the “Johnson” tract, but that the “southern line of the Black Banks tract is the northern line of” the Johnson tract.

Judgment reversed.

Stephens and Bell, JJ., concur.