Deaton v. Friedman Amusement Company

1. Where a petition alleges a breach of a contract in a particular way, an amendment alleging a breach of the same contract in a different manner is subject to dismissal on demurrer, where the amendment is not offered as a new or separate count to the original petition. Dundee Woolen Mills v. Edison, 17 Ga. App. 245 (3) (86 S.E. 414); Flynt v. Southern Ry. Co., 7 Ga. App. 313 (2) (66 S.E. 957); Southern Ry. Co. v. McCrary, 55 Ga. App. 406 (2) (190 S.E. 195).

2. Applying the foregoing rulings to the facts of this case, the court erred in overruling the demurrer to the amendment which was not offered as a new count to the original petition. And that error rendered the further proceedings nugatory.

Judgment reversed. MacIntyre and Gardner, JJ.,concur.

DECIDED NOVEMBER 7, 1942.