Opinion
33256.
DECIDED DECEMBER 1, 1950. REHEARING DENIED DECEMBER 13, 1950.
Damages; from Gordon Superior Court — Judge Paschall. March 6, 1950.
Y. A. Henderson, Brinson Davis, for plaintiff in error.
Erwin King, Harris, Henson, Spence Gower, contra.
1. The motion to dismiss the writ of error on the ground that the same contained no assignment of error is without merit and is denied.
2. Plaintiff's original petition alleged damage to plaintiff by reason of defendant's improper and negligent installation of a water heater in plaintiff's dwelling house, and sounded in tort. An amendment allowed thereto, which did not strike the original allegations sounding in tort, alleged damage to plaintiff by reason of defendant's breach of an express contract to properly install said water heater. The petition as amended contained two inconsistent theories of recovery in a single count and such amended petition was subject to the special demurrer of the defendant pointing out the duplicity. City of Albany v. Jackson, 33 Ga. App. 30(1) (125 S.E. 478).
3. An exception pendente lite which recites that the court erred in overruling a designated demurrer to the petition makes a proper assignment of error.
The court erred in overruling defendant's special demurrer pointing out duplicity in the amended petition, and all further proceedings were nugatory.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.