
    38022.
    BRYAN et al. v. GRAVELY.
    Decided April 20, 1960.
    
      Wright, Rogers, Magruder & Hoyt, Robert G. Walther, for plaintiffs in error.
    
      Clower & Anderson, George Anderson, contra.
   Bell, Judge.

Where a petition is amended by adding a new count, the question as to whether the new count may be added by amendment is properly raised by special demurrer. It is error where a trial judge determines this question by a ruling on a general demurrer. Milton v. Milton, 195 Ga. 130 (23 S. E. 2d 411).

Where a count added by amendment to a petition contains allegations that the plaintiff, at the request of the defendant, and for the defendant’s use and benefit, paid to persons named in an exhibit attached to the petition the sum of $2,160.91 for the repair of buildings, that the defendant promised to pay the sum so expended to the plaintiff on demand, and that the defendant had refused to pay, a cause of action based upon an alleged express oral contract was stated and the count was not subject to general demurrer. This is true even though the count added by amendment was subject to being stricken by special demurrer for the reason that it set forth a new and distinct cause of action. Neal & Son v. Stanley, 17 Ga. App. 502 (87 S. E. 718).

The order sustaining the general demurrer is hereby reversed.

Felton, C. J., and Nichols, J., concur.  