Pattillo v. Jones

Lewis, J.

It appears from the facts stated in the official report of this case, that the plaintiff’s action was based upon a transfer to the defendant of an option obtained from one Field, by which the latter gave to plaintiff the privilege of buying certain lands upon payment of a certain amount within sixty days. The record fails to show any consideration whatever for this option; and it is urged with much force by counsel for defendant in error, that the original contract between plaintiff and defendant was a mere nudum pactum, there being an obligation on the part of Field to do something without any corresponding obligation on the part of the plaintiff to do anything. We are not prepared to say but that if Field after-wards recognized this obligation as binding upon him by selling the land to Jones, as transferee of the option, the contract made between plaintiff and defendant, though void and dead in its incipiency, ivas galvanized into life by the subsequent action of Field. Under the view we take of this case, however, we do not consider it necessary to decide this question raised in the argument.

The original suit was founded upon a partnership contract, and was brought by one of two partners against the other, for the purpose of restraining the defendant from disposing of the partnership property, having a receiver appointed to take charge of it, and effecting a dissolution of the partnership. It does not appear that any injunction has ever been granted or a receiver appointed, as prayed for in the petition. It was provided in the contract, which was the basis of plaintiff’s action, that if, at the end of two years, one half of the profits arising from the property should not amount to enough to pay one .half of the purchase-money and interest, then the plaintiff should lose all of his interest and lights he has to the property, and- be relieved from any and all of the debts incurred for purchase-money and interest. When the case came on for trial, the two years limitation had expired; and it appears from an amendment to plaintiff’s petition, that the profits had not amounted to enough to give him the interest in the property contemplated by the partnership scheme. At the trial, then, there was nothing left in the original petition to be determined'. The' partnership had expired by the terms of the contract. There was no partnership property in existence; nothing left for an injunction to operate upon, and nothing to be placed in the hands of a receiver. Plaintiff, however, sought to maintain his standing in court by offering another amendment to his petition, seeking to enforce his rights under the following provision in the contract: “R M. Pattillo will have the right to purchase the 82 acres on the west of road, upon him paying T. R Jones one thousand dollars in the event that he, the said Pattillo, should lose his half-interest above as stated, by reason of not having enough profits to pay for the half of the entire place.” He alleged in his amendment that the defendant had claimed to have sold this 82 acres, and he prayed for damages growing out of a breach of this portion of the contract. It was about eighteen months after the filing of the original petition before this alleged breach occurred. Therefore, no such cause of action existed when the suit was originally brought. The action, -as originally instituted, was purely and wholly equitable in its nature. The amendment sets up a cause of action purely legal, and for a breach of contract originating long after the suit was filed. While the law of Georgia is very liberal in allowing amendments to pleadings, yet a fundamental rule governing this practice is, that there must be something left in the original structure erected by the pleader which he can repair by an amendment. If we are right in our view that at the trial term of the case there was nothing left in the petition upon which any relief prayed for could be granted, there was nothing left to amend by, and the plaintiff’s amendment set up a new and distinct cause of action. Williams v. Hall, 103 Ga. 796.

Judgment affirmed.

All the Justices concurring.