Milton v. Milton
| Decision Date | 02 December 1942 |
| Docket Number | 14301. |
| Citation | 23 S.E.2d 411,195 Ga. 130 |
| Parties | MILTON et al. v. MILTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the trial judge has overruled a general demurrer and his judgment is reversed by the reviewing court, the plaintiff may, before the remittiturfrom the reviewing court is made the judgment of the trial court, amend his petition as if no judgment had been rendered; otherwise where the reviewing court affirms a judgment sustaining a general demurrer.
2. Plaintiff's amendment to his original petition, which sought specific performance of an oral promise to give the plaintiff certain lands, which amendment struck the allegations held in Milton v. Milton, 192 Ga. 778 780, 16 S.E.2d 573, to show that the agreement sought to be enforced was one of rental rather than one of gift, thus leaving the petition containing these elements (1) a promise to give, (2) a meritorious consideration, (3) the placing of the plaintiff in possession in pursuance of the gift and (4) the making of valuable improvements on the faith of the gift the amended petition stated a good case as against general demurrer.
3. The amendment setting up an additional count to the petition, in which the plaintiff sought to declare upon the same transaction, as set forth in the first count, and in which the transaction was construed and asserted by the plaintiff as a contract of purchase and sale and not as a gift, did not seek to declare upon and add to the petition a new cause of action, but was merely a different statement of how arose this same duty on the part of the defendant, i. e., the duty to convey the described lands to the plaintiff. Thus the plaintiff, declaring upon the same cause of action but stating its origin, in a different way, could do so by amendment, as if done in a separate count originally.
4. The amendment setting up a second count containing elements to make it complete within itself, as a cause of action based upon a contract for the sale and purchase of land, was sufficiently certain and definite to meet the challenge of a general demurrer.
W. Wright Abbot, of Louisville, and Hammond, Kennedy & Yow, of Augusta, for plaintiffs in error.
M. C. Barwick, of Louisville, for defendant in error.
After our decision in Milton v. Milton, 192 Ga. 778, 16 S.E.2d 573, and before the remittitur was made the judgment of the trial court, the plaintiff offered two amendments, one striking from his petition the paragraph which we had construed in our decision to put him in the position of a tenant, and to render his situation such as to prevent him from successfully declaring upon the transaction as an enforceable oral promise to give the land involved. In this amendment he substituted an allegation which merely declared that his father put him in possession, directed him to go ahead and improve it, and stated that henceforth the land was to be his own. The other amendment set up an additional count outlining substantially the same transaction, but denominating it as an agreement on his part to purchase and on the part of his father to sell the land. The facts about the transaction are set forth in the former decision, 192 Ga. 778, 16 S.E.2d 573, supra. The difference in the allegations of this court, as stated by the plaintiff, was that upon consideration of his going into possession, making certain improvements, and upon his payment to his father of the equivalent in money of three bales of lint-cotton annually for eight years and of two bales thereafter annually until the death of his father, the plaintiff would receive title to the property. Objections and demurrer to these amendments were on the grounds, that the amendments came too late; that the amendment setting up a new count sought to present a new cause of action, and that the plaintiff, having declared upon and sought to enforce a gift, could not now change his position and assert a contract of purchase and sale; and that he was estopped so to do. The judge allowed the amendments and overruled the demurrer. The exceptions are to this order. These questions were likewise made by a plea of res judicata, but will be considered in our rulings on the demurrer.
1. When the case was heard before, the judge overruled the demurrer challenging the plaintiff's right to recover.
This ruling was reversed; and therefore, until the judgment of this court was made the judgment of the court below, the plaintiff had the right to amend. Code, § 81-1301; Mills v. Boyd Lumber Co., 148 Ga. 23, 95 S.E. 698; Berrien County Bank v. Alexander, 154 Ga. 775, 115 S.E. 648; Thurmond v. Clark, 47 Ga. 500; Augusta Ry. Co. v. Andrews, 92 Ga. 706, 19 S.E. 713; Charleston & W. C. Ry. Co. v. Miller, 115 Ga. 92, 41 S.E. 252; Savannah, F. & W. Ry. Co. v. Chaney, 102 Ga. 814, 30 S.E. 437; Seaboard A.-L. Ry. Co. v. Randolph, 126 Ga. 238, 240, 55 S.E. 47; Hillis v. E. T. Comer & Co., 16 Ga.App. 653, 85 S.E. 931; Walker v. Cook, 17 Ga. 126; Owens v. Owens, 190 Ga. 191, 8 S.E.2d 644; Jackson v. Security Insurance Co., 177 Ga. 631, 170 S.E. 787. This, it will be understood, is different from cases where the judgment had been otherwise, i. e., where there has been a judgment dismissing plaintiff's case and a subsequent affirmance. Central R., etc., Co. v. Patterson, 87 Ga. 646, 13 S.E. 525; Harp v. Southern Ry. Co., 119 Ga. 927(4), 47 S.E. 206, 100 Am.St.Rep. 212; City of Rome v. Sudduth, 121 Ga. 420, 49 S.E. 300; Johnson v. Seaboard A.-L. Ry., 14 Ga.App. 223, 80 S.E. 549. The objections to the amendment on the ground that it came too late were properly overruled.
2. As pointed out when we considered the case on the original pleadings (192 Ga. 778, 780, 16 S.E.2d 573, 575),
The weakness we found in the original petition was that it in substance made the plaintiff a tenant and his father the landlord; and this was considered as inconsistent with the theory of gift upon which he sought to recover. All reference to the rental was stricken by this amendment; and by the standard set forth above, the plaintiff has met the criticism, and has stated, in accordance with the rulings made in the former opinion and with the authorities there cited, a case for specific performance of a parol gift of lands. The necessary elements enumerated in our former decision fully appear, and are not now, in this count of the petition as amended, neutralized by the showing of this other relation which was thought to be fatal to his case.
3. It is earnestly argued that by his second count the plaintiff seeks to declare upon a cause of action; and that by the principle of estoppel and election of remedies, he may not now assert and recover upon a contract of purchase, and sale, having once declared it to be a gift. The plaintiff's right to amend is as perfect in law now as it would have been before any judgment. See authorities cited supra. Originally he might have included in his petition two counts stating his case both ways, one upon the theory of gift and the other upon the theory of contract of purchase and sale. 'The plaintiff may in different counts set out the same cause of action in various ways; and where the petition contains more than one count, referring to the same transaction, but differing one from another in substantial particulars as to the details of such transaction, it is not bad for duplicity.' National Surety Co. v. Farmer's State Bank, 145 Ga. 461, 467, 89 S.E. 581, 584; Gainesville, etc., Ry. Co. v. Austin, 122 Ga. 823, 825, 826, 50 S.E. 983. If the two counts could thus be joined in the original petition, the second count, not stating a new and independent cause of action, could be added by amendment. Foster v. Southern Ry. Co., 42 Ga.App. 830(3), 157 S.E. 371; Rose & Dasher v. Taylor, Lowenstein & Co., 26 Ga.App. 700, 106 S.E. 922; Miller v. Southern Ry. Co., 21 Ga.App. 367(5), 94 S.E. 619.
'The plaintiff cannot introduce an entirely new cause of action; but if he adhere to the original cause of action, he may add a count substantially different from the declaration.' Maxwell v. Harrison, 8 Ga. 61(2), 52 Am.Dec. 385. ...
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