
    11261.
    Glover-White Mercantile Co. v. Ausburn.
    Decided November 10, 1920.
    Action for damages; from Floyd superior court-—-Judge Wright. January 12, 1920.
    The plaintiff offered to buy from the defendant certain cottonseed, stating that he wanted a variety known as Cooke’s seed, and no other, and was willing to pay a higher price if he could get that variety of seed. The defendant offered to sell to him Cooke’s cottonseed, and did sell to him certain seed which the defendant represented to be Cooke’s seed. He planted it, and when the crop matured he found that it was not Cooke’s, but another variety of seed. He sued for breach of contract, and by demurrer the defendant contended that no cause of action was set forth in the petition, and that the damages asked were too remote and speculative. The plaintiff then amended the petition and alleged that the "defendant well knew at the time said seed were purchased the purpose for which they were bought, and also knew that said seed were not of the variety called for under the contract, and the defendant, wilfully and with the knowledge that said seed were not Cooke’s seed, fraudulently, for the purpose of selling them to plaintiff at the high price named, represented that seed to be Cooke’s seed.” To the petition as amended the defendant demurred generally and specially, contending that there was no cause of actign, and that the plaintiff was attempting to .set up therein a cause of action ex contractu coupled with a cause of action ex delicto. The court overruled the demurrer, and the defendant excepted.
   Jenkins, P. J.

One suing for breacli of the specific terms of an express contract cannot by amendment convert the suit into an action for tort, based on fraud and deceit, nor can he join such an action on contract with one based on tort. Brooke v. Cole, 108 Ga. 251, 252 (33 S. E. 849); Wolff v. Southern Ry. Co., 130 Ga. 251 (60 S. E. 569). Judgment reversed.

Stephens and Smith, JJ., concur.

Wright Willingham, L. H. Covington, for plaintiff in error.

M. B. Edwards, contra.  