Graham v. Jones

147 S.E. 902, 39 Ga. App. 610, 1929 Ga. App. LEXIS 463

• Court: Court of Appeals of Georgia
• Decided: April 11, 1929
• Docket: 19188
• Status: Published

Opinion

Bell, J.

A plaintiff can not recover except upon the cause of action as laid in his petition. The plaintiff here sued for the amount of certain money expended for the benefit of the defendant’s testator and for the value of certain services rendered to the testator during his lifetime, the case being laid upon the theory of an express promise and agreement by the testator to pay to the plaintiff the amount of the money so expended and the value of the services so rendered. The evidence failed to show any such special contract; and the plaintiff, having sued on a special agreement, was not entitled to recover on an implied obligation. The verdict in the plaintiff’s favor was therefore unauthorized and should have been set aside on the defendant’s motion for a new trial. Alford, v. Davis, 21 Ga. App. 820 (4 c) (95 S. E. 313) ; Shropshire v. Heard, 27 Ga. App. 256 (107 S. E. 892) ; Seaboard Air-Line Ry. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S. E. 220).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.