Opinion
37012.
DECIDED FEBRUARY 5, 1958.
Money had and received. DeKalb Civil Court. Before Judge Mitchell. November 12, 1957.
T. J. Long, Ben Weinberg, Jr., for plaintiff in error.
Thomas E. Moran, contra.
1. A material amendment to a petition opens the amended petition to demurrer and a prior ruling on a general demurrer to the original petition is extinct and nugatory.
2. In an action for money had and received growing out of the proceeds of an illegal contract of sale where the illegal portion of the contract had been performed and the parties are in pari delicto, neither a court of law nor of equity will interpose to give relief to either party but will leave them as they are found.
DECIDED FEBRUARY 5, 1958.
The Standard Club sued Marion L. Saphire for money had and received. The plaintiff alleged that it had entrusted to the defendant "certain machines" for the purpose of selling such machines; that the defendant had actually sold the machines and had not paid over to the plaintiff all of the money which was due the plaintiff as the result of such sale but was withholding a portion of the sales price. A general demurrer to the petition was overruled and such judgment was unexcepted to. The plaintiff later amended his petition to show that the machines which were sold were "slot machines." The defendant made an oral motion in the nature of a general demurrer to the amended petition. The court sustained this motion and dismissed the action and the plaintiff excepts.
1. The plaintiff in error contends that the ruling on the general demurrer to the original petition unexcepted to was the law of the case and was a "solemn adjudication" that the petition, even as amended, was good as against a general demurrer. This contention is without merit under the facts of this case. The original petition showed that the sale made by the defendant on behalf of the plaintiff involved "machines" but the amendment described such machines as "slot machines" and, therefore, the amendment materially changed the petition and the former ruling became extinct or nugatory ( Holliday v. Pope, 205 Ga. 301, 308 (1), 53 S.E.2d 350), and the petition as materially amended became subject to demurrer. Mooney v. Mooney, 200 Ga. 395 (1) ( 37 S.E.2d 195).
2. The gist of an action for money had and received is equity and good conscience. Brackett v. Fulton National Bank, 80 Ga. Ga. App. 467 (56 S.E.2d 486). The mere possession of "slot machines" is illegal and such machines are contraband. Elder v. Camp, 193 Ga. 320 (2) ( 18 S.E.2d 622). Therefore, a contract for the sale of "slot machines" is unlawful and against public policy. Since the illegal provisions of the contract had been executed and the parties are in pari delicto, neither a court of law nor of equity will interpose to give relief to either party but will leave them as they are found. Gaddy v. Silverman, 86 Ga. App. 239, 245 ( 71 S.E.2d 277). See also, Hanley v. Savannah Bank Trust Co., 208 Ga. 585 ( 65 S.E.2d 26).
The court did not err in sustaining the motion to dismiss and in dismissing the action.
Judgment affirmed. Quillian and Nichols, JJ., concur.