The plaintiff's petition, as amended, set forth a cause of action for the breach of a written contract, and the amendment, which merely elaborated upon the original transaction sued on, did not attempt to set forth a new and distinct cause of action.

Sawan, Inc., filed suit against H. A. Friedsam to recover for an alleged breach of a contract under which the defendant was to sell the plaintiff approximately 200 to 300 bags of Pensacola Bahia seed. A copy of the contract was attached to the petition as an exhibit, and it was alleged that the defendant refused to deliver such seed. It was alleged that the contract price was twenty cents per pound, that the market value of the seed was thirty-five cents per pound, and that the plaintiff had therefore been damaged in the amount of fifteen cents per pound, or a total of $3,000. The defendant made an oral motion, in the nature of a general demurrer, to dismiss the petition, which the trial court sustained and allowed the plaintiff time in which to amend. The plaintiff amended his petition, and the defendant thereafter filed general and special demurrers to the petition, the amendment, and the petition as amended. On the hearing of such demurrers the trial court overruled all of the defendant's demurrers and it is to this judgment that the defendant now excepts.

2-A. That there was at the time of the execution of said contract a general and universal custom in the trade of growing, buying and selling grass seed, including Pensacola Bahia seed, that such Bahia seed be packed in 100-pound bags, which was known to defendant, and that defendant and plaintiff's agent, K. R. Vance, executed the said contract in contemplation of and pursuant to said custom. Both defendant and plaintiff's agent, K. R. Vance, understood that the contract called for delivery of the seed shown to said agent, and agreed that the seed when cleaned would not be less than 200 bags and not more than 300 bags of Bahia seed, with each bag of the weight of 100 pounds. 3. Plaintiff shows that on February 2, 1959, in compliance with said contract (February 1st being Sunday), plaintiff's truck, driven by 0. J. Bunn and accompanied by plaintiff's agent, K. R. Vance, went to Mr. Friedsam's farm for the purpose of accepting delivery of the seed, but were advised by defendant that said seed had already been sold. Said defendant then and there refused to make delivery of the seed described in the contract and has at all times since February 2, 1959, failed and refused to deliver to plaintiff the seed described in the contract. 3-A. That after the examination of said contract and before the date set for delivery the defendant furnished a sample of said seed to plaintiff for testing, which sample when tested was satisfactory to plaintiff as to percentage of purity and germination under the terms of the contract. 4. Plaintiff shows that under the contract defendant was to deliver to plaintiff at least 200 bags of Pensacola Bahia seed to the contract price of 20 per pound. Plaintiff further shows that on February 2, 1959, the market price of Pensacola Bahia seeds was 35 per pound, making a difference of 15 per pound between the contract price and the market price, in which amount of 15 per pound, plaintiff would have profited. Plaintiff shows that each bag of the 200 bags of seed would have weighed 100 pounds, making a total of 20,000 pounds of seed, which should have been delivered to plaintiff under the contract. Figuring 20,000 pounds of seed at 15 per pound, makes the total sum of $3,000, in which amount plaintiff has been damaged and recovery of which is sought in this action. 4-A. Plaintiff shows that the seed in possession of defendant and stored in his building, then in bulk, when later cleaned by defendant and bagged in 100-pound bags amounted to as many as 200 bags of 100 pounds each. 5. Plaintiff shows that the failure and refusal of defendant to comply on February 2, 1959, with the terms of his contract, was an intentional and arbitrary refusal on the part of the said defendant to comply with the terms of the said contract, and the plaintiff is entitled to recover of defendant interest at the rate of 7% per annum from and after February 2, 1959, on the amount of $3,000, said sum being the amount of the damages sustained by plaintiff." Paragraphs designated by the letter "A", were added by amendment. The petition had attached thereto a copy of the contract allegedly breached by the defendant. This contract called for the sale of 200 to 300 bags of Pensacola Bahia seeds with the purity of ninety-five or better and the germination eighty-five or better.

2. The petition alleged a duty and a breach thereof by the defendant. It alleged that the parties entered into a contract, that when the plaintiff sought to secure delivery of the seed covered by the contract the defendant advised him that he had already "sold" the seed. " 'The word "sold" imports not a mere proposition to sell, but a consummated contract of sale.' 4 Words & Phrases (2d), 611." Neuhoff v. Swift & Co., 54 Ga. App. 651, 656 (188 S. E. 831). "A cause of action is made up of two elements: namely a duty and a breach of it." Bell v. Fitz, 84 Ga. App. 220, 223 (66 S. E. 2d 108). The petition alleged a valid contract and a breach thereof by the defendant, and was not subject to demurrer. The judgment of the trial court overruling the defendant's demurrers must be affirmed.

FELTON, Chief Judge, concurring specially.