Hartley v. Folds

Smith, J. 1. “All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be jjoined.” Civil Code (1910), § 5521; Hillside Cotton Mills v. Ellis, 23 Ga. App 45 (4), 46 (97 S. E. 459). Claims arising ex contractu can not be joined in the same suit with claims arising ex delicto. Wolff v. Southern Ry. Co., 130 Ga. 251 (60 S. E. 569). 2. The cause of action upon which the plaintiff sought to recover the profits which would have arisen from the purchased timber had not the defendant breached the contract of sale was a claim ex contractu. The cause of action upon which the plaintiff sought to recover damages arising from the alleged destruction by the defendants of the plaintiff’s lumber and sawmill was a claim ex delicto. 3. An action based upon a claim ex contractu can not by amendment be converted into an action ex delicto. Civil Code (1910), § 5683; Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787). 4. In this case the court erred in allowing the amendment by which it was sought to convert the claim sued on ex contractu into an action ex delicto; and in overruling the demurrer based upon the ground that the petition contained a misjoinder of causes of action. Judgment reversed. Jenkins, P. J., and Stephens, J., concur. Smith & Smith, for plaintiffs in error. S. Holderness, Buford Boylcin, contra.