The grant of a partial summary judgment is an appealable order. Code Ann. § 81A-156(h). Where the plaintiff sues on a theory of money had and received by the defendant which was paid over in two sums, and the allegations of the petition affirmatively show that the plaintiff is not entitled to recover one of them, the amount which the plaintiff is entitled to recover becomes an issue in the case, and motion for summary judgment is a proper means of testing its validity.
Failure to properly identify the errors enumerated by references to pertinent portions of the record pagination is not a ground for dismissal of the appeal but may result in treating such enumerations of error as abandoned. Hayes v. Century 21 Shows, Inc., 116 Ga. App. 490 (1) (157 SE2d 779). While this procedure should be followed in all instances, mere failure to give the page number where it is otherwise readily identified by reference to the index, will not preclude consideration of the enumeration of error complaining that an amendment was erroneously stricken. Rainey v. Housing Authority of the City of Atlanta, 114 Ga. App. 333 (151 SE2d 534).
One of the issues in this case is whether the plaintiff can recover from the defendant $5,000 which was paid the defendant by the plaintiff’s father-in-law under the following circumstances as shown by the affidavits and depositions: the plaintiff testified that the defendant agreed to represent him in all criminal cases pending against him for the sum of $5,000, which the plaintiff paid the defendant the following day. Thereafter, whenever he *335called the defendant he was not given advice but was asked for money. He contacted his father-in-law and found out that the latter had advanced an additional $5,000 to the defendant. The defendant on being reminded of this by the plaintiff acknowledged receipt of the sum but stated that he needed an additional $15,000. On cross examination the plaintiff stated that the second $5,000 payment did not come from him and was not his money. His wife testified that the $5,000 was not her money, that it was paid by her father and she assumed it was his. The father testified: “I want you to know that this $5,000 that I gave Mr. Garland was my own personal money that I worked hard for all of my life and saved, and I expect Leon to pay that back to me”; that the defendant had called him demanding $25,000 and that he sold some personal stock to raise the $5,000 which he paid over on the defendant’s agreement to take certain immediate action in the case. Since the facts show that no question of agency was involved, whether or not the plaintiff afterward ratified his father’s separate agreement with the defendant and agreed to pay back the money is of no consequence. Estes v. Thompson, 90 Ga. 698 (3), supra. Summary judgment was properly granted as to $5,000 of the recovery sought.
This petition was originally brought on the theory of money had and received to recover money paid the defendant by the plaintiff for services which the defendant allegedly refused to perform. This was a proper form of pleading under the rules existing in December, 1962, the date of filing. See Broome v. Cavanaugh, 102 Ga. App. 560 (116 SE2d 881). It was an ex contractu action, since a suit for money had and received must grow out of privity of contract, express or implied. Stein Steel & Supply Co. v. K & L Enterprises, 97 Ga. App. 71, 73 (102 SE2d 99). In October, 1967, it was amended by allegations that the defendant at the time he entered into the contract, had no intention of performing it, and on the theory of fraud and deceit plaintiff sought additional punitive damages. While former Code § 3-113 forbidding the joinder of ex delicto and ex contractu actions was repealed (Code Ann. § 81A-201 (a)) and the new Civil Practice Act (Code Ann § 81A-108 (e) (2)) allows the joinder of claims regardless of consistency, either *336in the original petition or, under Code Ann. § 81A-115 (c) by amendment, Code § 20-1405 forbidding exemplary damages in cases arising on contracts did not suffer the sudden death inflicted on Code § 3-113. “Exemplary” and “punitive” damages relate to the same thing. Interstate Life & Acc. Co. v. Brewer, 56 Ga. App. 599, 609 (193 SE 458). With the amendment the claim is inconsistent to the extent that it remains an ex contractu action in which a part of the damages sought are not recoverable. Additionally, it sets up a claim sounding in tort for fraud in the inducement of the contract. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (3) (105 SE 57); 10 ALR Anno. p. 756. Such situations may be expected to arise under our present system of notice pleading, where the issues are to be set not so much in the pleadings themselves as in later steps of the case including pretrial orders. Bourn v. Herring, 225 Ga. 67 (3) (166 SE2d 89).
The defendant contends, however, that since at the time the petition was filed the former rule against joinder of ex contractu and ex delicto actions existed, the plaintiff elected his remedy and should not now be allowed to change horses in the middle of the stream. That this was formerly the law, see Evans v. C. & S. Bank, 206 Ga. 441, 448 (57 SE2d 541). The question then seems to be whether an election of remedy made at a time when it would have been conclusive, but which is no longer conclusive of the issue, is substantive or procedural. See Scott v. Oxford, 105 Ga. App. 301, 305 (124 SE2d 420). We feel that it must be treated as procedural on two grounds. First, our courts have in effect decided the question, since under Hill v. Willis, 224 Ga. 263 (1) (161 SE2d 281), this court is to apply the law as it exists at the time of the decision, a rule held applicable to the doctrine of election of remedies in Bacon v. Winter, 118 Ga. App. 358 (163 SE2d 890). See also Bazemore v. Burnet, 117 Ga. App. 849, 851 (161 SE2d 924): “The Civil Practice Act may be applied on appeal in reviewing a judgment of the trial court rendered under the former procedure in cases filed prior to the effective date of the Act.”
Secondly, we are at liberty to extrapolate from decisions construing substantially identical Federal Rules of Civil Procedure in arriving at an interpretation of their meaning and effect *337(Brown v. Ripley, (Fla.), 119 S2d 712) and Rule 8 (e), U. S. C. A., which is identical with Code Ann. § 81A-108 (e) is construed by the Federal courts to be procedural rather than substantive since it is applied in diversity of citizenship cases regardless of whether or not such procedure is permissible under state law. Paxton v. Desch Building Block Co., 146 FSupp. 32; Boulevard Airport, Inc. v. Consolidated Vultee Aircraft Corp. 85 FSupp. 876; Blazer v. Black, 196 F2d 139; Neumann v. Bastian-Blessing Co., 71 FSupp. 803; Herlihy Mid-Continent Co. v. Bay City, 293 F2d 383; Stewart v. Shanahan, 277 F2d 233. See also Hanna v. Plumer, 380 U. S. 460 (85 SC 1136, 14 LE2d 8).
Being, therefore, unable to reach any conclusion other than that the change in the law in regard to pleading actions sounding simultaneously or alternatively in tort and contract is procedural and goes only to the remedy, we must bring this decision within the ambit of that part of Code § 102-104 specifying that “laws looking only to the remedy or mode of trial may apply to contracts, rights, and offenses entered into or accrued or committed prior to their passage.” In the same vein, Section 86(b) of the amendment to the Civil Practice Act (Ga. L. 1968, pp. 1104, 1109) provides: “This Act shall also be applied retroactively by the trial and appellate courts where the effect thereof is to render valid something which was not valid when done, but this Act shall not be applied retroactively when the effect would be to render invalid something which was valid when done, or where such application would impair vested rights or otherwise be in violation of the Constitution.” We cannot accept the contention that the plaintiff, by pleading under the former law at the time when it was in effect, vested in the defendant any right to insist upon such election as the law of the case, particularly in view of Code Ann. § 81A-160 (h) generally abolishing the law of the case rule.
It follows that the amendment should not have been dismissed as not germane, or because the plaintiff is barred from recovering punitive damages. This does not mean that the plaintiff is entitled to punitive damages on an action ex contractu, but merely that he has a right to pursue contradictory claims so far as the pleading stage of this litigation is concerned.
*338 Judgment affirmed in part; reversed in part.
Felton, C. J., Bell, P. J., Hall, Deen and Quillian, JJ., concur. Jordan, P. J., Eberhardt and Whitman, JJ., dissent to Division 3. Pannell, J., dissents.