Houze v. Blackwell

93 S.E. 16, 20 Ga. App. 438, 1917 Ga. App. LEXIS 928

• Court: Court of Appeals of Georgia
• Decided: June 29, 1917
• Docket: 8095
• Status: Published

Opinion

Bloodworth, J.

When this case was before the Supreme Court (144 Ga. 700, 87 S. E. 1054), that court decided that the petition, properly construed, showed the action to be for deceit. An action for deceit is an action in tort. Civil Code, 1910, § 4410; Brooke v. Cole, 108 Ga. 252.(33 S. E. 849);. Brady v. Evans, 78 Fed. 558-560 (24 C. C. A. 236); Lamb v. Howard, 145 Ga. 847 (90 S. E. 63). “A tort is a legal wrong committed upon a person or property, independent of contract.” Civil Code (1910), § 4403. “When a transaction partakes of the nature both of a tort and .a contract, the party complainant may waive the one and rely solely upon the other.” Civil Code (1910); § 4407. “A claim arising out of an alleged tort can not be joined in the same action with a claim for money had and received, the rule of the code being that plaintiff may join all causes of action of like nature; causes ex-delicto can not be joined with causes ex contractu.” Teem v. Ellijay, 89 Ga. 155 (2) (15 S. E. 33); Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787); Croghan v. New York Underwriters Agency, 53 Ga. 109 (2); Cheney v. Powell, 88 Ga. 633 (15 S. E. 750); Brooke v. Cole, supra; Hutchens v. Seaboard Air-Line Railway, 144 Ga. 313 (2), 315 (87 S. E. 28); Dunn v. Fairbanks-Morse Co., 19 Ga. App. 548 (91 S. E. 1005); Peel v. Bryson, 72 Ga. 335; Perdue v. Harwell, 80 Ga. 150 (4 S. E. 877). In the instant case plaintiff is bound by his election to sue for the tort, and the court erred in permitting the petition to be so amended that he could proceed for money had and received. As a new trial is to be granted on account of this error, it is unnecessary to discuss the other alleged errors.

Judgment reversed.

Broyles, P. J., and Jenkins, J., concur.