Thomas v. Lomax, 33215

• Decision Date: 28 October 1950
• Docket Number: No. 33215,No. 1,33215,1
• Citation: 61 S.E.2d 790,82 Ga.App. 592
• Parties: THOMAS v. LOMAX
• Court: Georgia Court of Appeals

Page 790

61 S.E.2d 790

82 Ga.App. 592

THOMAS v. LOMAX.

No. 33215.

Court of Appeals of Georgia, Division No. 1.

Oct. 28, 1950.

Syllabus by the Court.

Where it cannot be determined from a petition whether it seeks damages for the breach of an express or implied contract, and upon being questioned by the court with respect to such question, the plaintiff's attorney states that the case is one for breach of an express contract and the case is tried on such a theory, the plaintiff is not entitled to recover upon proof of the breach of an implied contract.

Mrs. Manda Thomas sued Mrs Winnie Lomax alleging: 'that the defendant is indebted to the plaintiff in the just and full sum of $1248 for work in the defendant's store in Lula, Georgia, Hall County as Clerk in selling goods from Feb. 1st, 1945 at $6.00 per week until the date of the filing of this suit; that said sum is past due, demanded and unpaid although defendant has promised to pay plaintiff many times since said account was first started'. Defendant answered by general denial. The jury found for the plaintiff for the full amount sued for. The defendant's motion for a new trial was overruled and she excepts.

Johnson & Johnson, Gainesville, for plaintiff in error.

Oliver & Oliver, Gainesville, for defendant in error.

FELTON, Judge.

1. From a reading of the petition it cannot be determined whether plaintiff was seeking to show breach of an express or an implied contract. However, plaintiff's counsel, upon inquiry of the court, twice stated that plaintiff's action was based upon an express contract. Relying on these statements, both the court and the defendant's counsel tried the case on that theory and the plaintiff is bound by such election.

2. Having taken the position in judicio that her action was on the theory of an express contract, plaintiff is limited to an action on an express contract. Seaboard Air Line Ry. Co. v. Henderson Lumber Co., 28 Ga.App. 391, 111 S.E. 220. An express contract is one where the intention of the parties and the terms of the agreement are declared or expressed by the parties, in writing or orally, at the time it is entered into. Douglas v. Stephens, 27 Ga.App. 485, 486(1), 108 S.E. 833, McInerney v. Detroit Trust Co., 279 Mich. 42, 271 N.W. 545. The following testimony by the plaintiff is the only evidence plaintiff introduced in an effort to prove an express contract: 'I was hired by Mrs. Thomas to clerk in the store up there at Lula. That was February 1, 1945. She was to pay me six dollars per week. I worked four years. She has not paid me anything. She has promised to pay me. She promised to pay me during the four year period. She owes me the full amount now. The amount is $1240.00. I went to the store February 1, 1945, on the first day of February. I didn't go there before then. I was living across the river when I went to the store. * * * When Amanda said she would pay me six dollars a week for working in the store was when she asked me to take the store and see after it. It was right there in the store. When I come to the store was when she asked me to take it. As to whether I had already come from across the river and was there in the store before she ever asked me to take it, she asked me to take it and take care of it and do the best I could. As to when was it that she asked me to take it and take care of it and whether that was the reason I...