ON MOTION ROE REHEARING.
Hooper, J.Tbe plaintiff, in response to defendant’s demurrer, voluntarily and without any order of court requiring it so to do, amended its petition so as to allege prior negotiations. This amendment by the plaintiff did not make the necessity of proving prior negotiations “the law of the case” (as contended in her motion for a rehearing). The allegations as to prior negotiations, contained in the amendment, were, under the ruling stated in headnote' 1, mere surplusage, and, in the language of the late Chief Justice Simmons of our Supreme Court, “we are not aware of any decision of this court or any other court that holds that a plaintiff is to be nonsuited or dismissed because he fails to prove every allegation in his declaration or petition. If he makes out a case that will entitle him to recover, that is sufficient.” Garrett v. Morris, 104 Ga. 84, 86 (30 S. E. 685).
Rehearing denied.
Lulce, J., concurs. Broyles, O. J., dissents.