53 Ga. App. 445 | Ga. Ct. App. | 1936
Williams sued Eldridge in the municipal court of Macon, alleging that defendant was due him certain sums as the value of specified services rendered by him for defendant, consisting of services performed by plaintiff in taking charge of certain property, endeavoring to sell the same, paying off creditors of the
1. A party must recover, if at all, upon the claim or defense set up in his pleadings. 49 C. J. 793, 794, 805; Lowry National Bank v. Fickett, 122 Ga. 489 (50 S. E. 396); Loyd v. Andrews, 119 Ga. 875 (47 S. E. 208); Brunswick Grocery Co. v. Spencer, 97 Ga. 764 (25 S. E. 764); Lea v. Harris, 84 Ga. 137 (10 S. E. 599); Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579); Graham v. Jones, 39 Ga. App. 610 (147 S. E. 902). Where plaintiff’s suit is predicated upon a contract, express or implied, and upon the trial it appears from plaintiff’s own testimony that such alleged contract had been abrogated by the defendant, and another and different contract entered into by the parties, the evidence would not authorize a recovery on such abrogated contract, and the verdict against the plaintiff was demanded. Whatever right of action the plaintiff may have had against the defendant would necessarily have to be predicated on the last agreement.
2. It follows that the judge did not err in dismissing the plaintiff’s petition for certiorari, complaining of the judgment overruling his motion for new trial.
Judgment affirmed.