Guye v. Revels

Felton, Chief Judge.

1. Duplicity in a petition cannot be reached by a general demurrer. Tingle v. Maddox, 186 Ga. 757 (1) (198 S. E. 722); Grant v. Hart, 192 Ga. 153 (4) (14 S. E. 2d 860).

2. Where a petition is duplicitous in that the plaintiff seeks in a single count to recover on an express contract and on quantum meruit, the plaintiff may amend by striking the allegations as to the express contract and may pursue the action on a quantum meruit theory. Kraft v. Rowland & Rowland, 33 Ga. App. 806, 808 (128 S. E. 812). This is not converting an action originally based on express contract to one based on quantum meruit. The plaintiff is merely doing voluntarily what he may have been required to do by an appropriate.special demurrer.

3. Complaint cannot be made in a motion for a new trial of the admission of evidence where no objection was made to the introduction of such evidence.

The court did not err in overruling the general demurrer, the objection to the allowance of the amendment, the renewed oral motion to dismiss, and the amended motion for a new trial.

Judgments affirmed.

Quillian and Nichols, JJ., concur.