Groover v. Tattnall Supply Co.

Pottle, J. Suit was brought upon an account for goods sold and delivered. Over objection of the defendant, the plaintiff was allowed to amend the petition, by alleging, in substance, that the goods described in the bill of particulars were sent to the defendant to be sold for the account of the plaintiff; and that the defendant had sold the goods and collected the money, and had failed and refused to pay over the same to the plaintiff. The objection to this amendment was that it set forth a new and distinct cause of action. We think that the objection was well taken and that the amendment should not have been allowed. The original petition was framed upon the theory that the defendant had bought the goods from the plaintiff for his own use, and had failed and refused to pay for the goods. The relation thus created was that of debtor and creditor, or purchaser and seller. The amendment converted the action into one for money had and received. It sought to create the relation of principal and agent, and to count upon a breach of contract by the defendant, under the terms of which he was to sell the goods for the plaintiff and to account to the plaintiff for the 680 proceeds thereof. In other words, the goods were shipped to the defendant on consignment, to be resold for the plaintiff. The defendant was to act as agent for the plaintiff and to sell the goods, collect the money, and pay over the proceeds. The issues were entirely different from those arising upon the petition as originally framed, and the cause of action was completely changed by the amendment. Chapman v. Americus Oil Co., 117 Ga. 881 (45 S. E. 268); Lamar v. Lamar, 118 Ga. 850 (45 S. E. 671). The amendment having been erroneously allowed, the case was tried upon the wrong theory, and everything that took place after this erroneous ruling was nugatory. Judgment reversed.