Opinion
37232.
DECIDED SEPTEMBER 4, 1958.
Quantum meruit. Augusta Municipal Court. Before Judge Cooper. May 6, 1958.
Bell Bell, for plaintiff in error.
Nicholson Fleming, contra.
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 merit, 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.
DECIDED SEPTEMBER 4, 1958.
Helen Jane Allen Revels, trading as Allen Paint Water-proofing Company, sued Wyman P. Guye, trading as Guye Construction Company. In a single count the plaintiff sought to recover on an express contract and on quantum meruit. The court overruled a general demurrer to the petition. After the plaintiff had presented his evidence and rested his case the defendant made an oral motion to dismiss the petition for the reason that the plaintiff had introduced evidence seeking to recover both for breach of contract and for quantum meruit. The plaintiff then tendered an amendment to his petition striking the references to the express contract. This amendment was allowed over the defendant's objections. After the amendment was allowed the defendant renewed his oral motion to dismiss on the ground that the plaintiff had converted his suit from one for breach of contract to one on quantum meruit. The objection to the amendment and the renewed oral motion to dismiss were overruled. After the defendant introduced his evidence the jury returned a verdict for the plaintiff. The defendant then filed an amended motion for a new trial which was denied.
The defendant excepts to the overruling of his general demurrer to the petition on the ground that the petition was duplicitous and excepts to the overruling of his objection to the allowance of the amendment, to the denial of his oral motion to dismiss and to the denial of his amended motion for a new trial. The general grounds of the amended motion were not argued or insisted upon.