Butler v. Crown Cork & Seal Co. , 34 Ga. App. 28 ( 1925 )

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 to 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.