Greater Savannah Co. v. Oliver & Oliver , 27 Ga. App. 496 ( 1921 )

Jenkins, P. J.

(After stating the foregoing facts.) The original petition, as we construe it, was not brought solely for the recovery of reasonable compensation rendered by plaintiffs in their respective capacities as vice-president and secretary of the company, although this seems to be the theory on which the argument by counsel for the plaintiff in error is based. Had the items In the bill of particulars definitely made it to appear that half of the amount' sued for was for services rendered solely by E. J. Oliver as secretary, and that the other half was for services rendered solely by F. M. Oliver as vice-president, then it would seem very •doubtful whether the mere general statement in the petition that plaintiffs were a legal copartnership would be sufficient to indicate that the suit was in any wise brought for legal services. And it is the opinion of the writer that if the original petition had been thus limited to a suit for services rendered by the plaintiffs solely in their respective official capacities, it could not be amended by setting up services rendered as attorneys, since to do so would be to change altogether the relationship of the parties to the suit. Central of Ga. Ry. Co. v. Williams, 105 Ga. 70, 72 (31 S. E. 134). But not only, as is indicated in the judgment of the trial judge, did the petition set forth that the plaintiffs were a legal copartnership composed of F. M. Oliver and B. J. Oliver, engaged in the practice of law, and that the defendant is indebted to the firm in the sum sued for, but, as we construe it, the suit as originally brought, and as is shown by the bill of particulars itself, was not only in part for services rendered by one of the members of the firm as secretary of the corporation, but was partly for attorney’s fees for services rendered in all matters requiring legal attention within a designated period, such as conferences and advice to the president relative to various specified legal matters, and such as certain other designated legal services rendered for and accepted by the defendant corporation, " all for the monthly charge of $25.” It will thus be seen that, even by the original bill of particulars, this charge of $25 per month was in part for attorney’s fees on account of legal services rendered; and the effect of the amendment was therefore but to eliminate the other kind of service and to increase the amount sued for as attorney’s fees; and this would seem not to be prohibited, since “ mi allegation in a petition, that under the facts pleaded the plaintiff is entitled to recover a certain amount, is not an estoppel in judicio which precludes an amendment that under the same facts the plaintiff is entitled to a larger recover.” Wilson v. Bush, 22 Ga. App. 83, 86, supra; Huger v. Cunningham, 126 Ga. 684 (4), supra.

Judgment affirmed.

Stephens and Hill, JJ., concur.