Phelps v. Gibbs

Jenkins, P. J.

1. Where the only item of an account sued upon was, “Balance due on purchase of farm near Sparks, Georgia, $120.00,” an amendment to the petition, to the effect that in the same transaction the defendant bought from the plaintiff the said farm, together with certain hay, tools, machinery, etc., on the farm, for the total price of $4,120, of which $2,000 was paid in cash, and assumed a loan of $2,000, leaving due a balance of $120, the amount sued for, was not demurrable as setting up a new and distinct cause of action; it appearing that the contract which was laid as the basis of the action in assumpsit was entire, and that there was nowhere any departure from the alleged contract. Consequently, there was no error in overruling the demurrer to the petition as amended.

3. There was no error in overruling the motion for a nonsuit.

4. The evidence supported the verdict, and the charge of the court, in setting forth the contentions of the plaintiff, did not invade the province of the jury, and was in conformity with the foregoing principles of law.

Judgment affirmed.

Stephens and Bell, JJ., concur. B. A. Hendricks, Hendricks & Hendricks, for plaintiff in error. IF. D. Buie, contra.