Seaboard Air Line Ry. Co. v. Henderson Lumber Co.

• Decision Date: 20 March 1922
• Docket Number: 12611.
• Citation: 111 S.E. 220,28 Ga.App. 391
• Parties: SEABOARD AIR LINE RY. CO. v. HENDERSON LUMBER CO.
• Court: Georgia Court of Appeals

111 S.E. 220

28 Ga.App. 391

SEABOARD AIR LINE RY. CO. v. HENDERSON LUMBER CO.

No. 12611.

Court of Appeals of Georgia, Second Division

March 20, 1922

Syllabus by the Court.

A plaintiff must recover upon the cause of action as laid in the petition. Napier v. Strong, 19 Ga.App. 401(2), 91 S.E. 579. In the instant case the petition is in one count, and sues for a "debt contracted with petitioner" upon defendant's "obligation to pay" $1 per day for the use of a described car. Having thus sued on an express contract to pay a certain amount, the plaintiff was not entitled to recover on a quantum meruit. Frierson v. Fincher, 134 Ga. 113, 67 S.E. 541; Baldwin v. Lessner, 8 Ga. 71; Haygood v. Perkins, 142 Ga. 168, 82 S.E. 544; Sylvania R. Co. v. Sylvania Lumber Co., 8 Ga.App. 656, 70 S.E. 51; Shropshire v. Heard, 27 Ga.App. 256, 107 S.E. 892. Moreover, even if the petition could be construed as being an action on a quantum meruit, the evidence fails to disclose any sort of actual or implied contractual relationship between the plaintiff and the defendant from which a promise to pay could be implied, since it appears that the car was in fact furnished by a different railroad company, and there is nothing to indicate that the defendant asked for or accepted the car from the plaintiff, or that in its dealings with the other company it was in fact dealing with the plaintiff through its agent.

Error from Superior Court, Irwin County; R. Eve, Judge.

Action by the Seaboard Air Line Railway Company against the Henderson Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Whipple & McKenzie, of Cordele, for plaintiff in error.

Quincey & Rice, of Ocilla, for defendant in error.

JENKINS, P.J.

Judgment affirmed.

STEPHENS and HILL, JJ., concur.