Levy v. Kiser Co. , 31 Ga. App. 113 ( 1923 )

Broyles, O. J.

1. A discharge in bankruptcy does not release a bankrupt from liability for obtaining property by false and fraudulent representations. Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299 (1) (68 S. E. 1077).

Decided November 13, 1923. C. A. Christian, R. D. Smith, for plaintiff in error. Fulwood & Eargrett, contra.

2. In the instant case the plaintiff, in its original petition, sued upon an open account for goods alleged to have been sold to the defendant. The defendant’s answer, as amended, set up that subsequent to the filing of the petition he was adjudged a bankrupt, that the plaintiff’s claim was a debt provable in bankruptcy, and that the plaintiff filed its claim in the court of bankruptcy and accepted a check sent out by the disbursing officer of the bankruptcy court for the 25 per cent, composition offered by the defendant and approved by the court. After the allowance of this amendment to the answer the plaintiff amended its petition by alleging that the defendant had obtained the goods through false and fraudulent representations, and therefore that the defendant’s discharge in bankruptcy did not operate as a' discharge of the balance of the account sued for. The defendant interposed demurrers assorting that the plaintiff could not change a suit ex contractu into an action ex delicto, and that the plaintiff was pursuing inconsistent remedies for the same cause of action. Held: The court did not err in overruling the demurrers. See, in this connection, Orr Shoe Co. v. Upshaw, 13 Ga. App. 501 (79 S. E. 362); Brandt v. Klement, 20 Ga. App. 665 (93 S. E. 255). The cases cited and relied on by counsel for the plaintiff in error are distinguished from this ease by their facts.

Judgment affirmed.

Lulce and Bloodivorih, JJ., concur.