Thornhill v. Cochran

116 S.E. 552, 30 Ga. App. 54, 1923 Ga. App. LEXIS 248

Opinion

Broyles, C. J.

1. Under the ruling in Cone v. American Swety Co., 154 Ga. 808 (115 S. E. 481), the motion to dismiss the writ of error in this case is overruled.

2. In an action upon a promissory note, where there is attached, to the petition what purports to be a copy of the note, any words appearing in the original note which were omitted from the attached copy can be added by amendment. Bray v. Arnold, 14 Ga. App. 221 (2) (80 S. E. 669). See also Sartorious v. Paper Mills Co., 10 Ga. App. 522 (2) (73 S. E. 854), and Sorrells v. Fitzpatrick Co., 22 Ga. App. 297 (95 S. E. 998).

3. In this case the copy of the note attached to the original petition and the copy of the note set forth in the amendment to the petition were for the same amount as principal, were signed at the same place, at the same time, by the same party, were payable to the same payees, matured at the same date, bore the same rate of interest, provided for the same attorney’s fees, and contained the same homestead waiver. The only material difference between the two notes was that the copy set up in the amendment contained the following provision (which was not in the copy attached to the original petition): “It is expressly understood that the payees of this note do not warrant the health or soundness of the animal for which this note is given, and it is expressly understood that the only warranty, either express or implied, that the payees of this note make as to the animal or animals for which this note may be given is as to the title of said animal. Every agreement respecting the sale and purchase of the animal for which this note is given is incorporated, herein. . . Eye of mule is guaranteed one year.” Under the ruling in paragraph 2 above, the court did not err in allowing the amendment, over the objection of the defendant that it introduced a new cause of action.

4. After the allowance of the amendment to the petition and the introduction of evidence the court did not err in directing a verdict in favor of the plaintiff.

Judgment affirmed.

Luke and Bloodworih, JJ., concur. John E. Morris Jr., for plaintiff in error. Branch & Snow, contra.