Hutcheson v. Mehaffey , 162 Ga. 630 ( 1926 )

Atkinson, J.

This verdict should be set aside on the ground that it is not supported by the evidence in the case. The only contract declared upon in the original petition is set forth in the statement of facts, and purports to be a contract between the petitioner, J. F. Mehaffey, and 0. L. Landmon, the decedent, which contemplated personal services by the former to the latter. It is unequivocally an allegation of an agreement upon the part of 0. L. Landmon to leave by will all of his property to J. F. Mehaffey, the original plaintiff. The other parties plaintiff intervened, and ordinarily intervenors as parties plaintiff take the case as they find it. They did not offer to strike any portion of the petition, but in their intervention expressly adopted every allegation in the original petition. That is capable of but one construction, which is that a contract was made by the decedent to leave his property to J. F. Mehaffey. The intervenors do make allegations that they were parties to that contract and were to share in the consideration thereof, but they do not deny that the contract as set out in the original petition was the contract made. If they had desired to do this they should have brought an independent suit setting up a joint contract. The allegations in the intervention of a joint contract would not be taking the case as the intervenors found it. While the allegations of a joint contract as contained in the intervention when considered alone would be repugnant to the allegations in the original petition of a separate contract, they are not to be so construed when considered in connection with other language in the intervention expressly ratifying all the allegations contained in the original petition. The intervenors could not in the same breath say that the contract was a separate contract and also that it was a joint contract, and the intervention construed most strongly against the intervenors must be construed as adhering to the allegations contained in the original petition to the effect that the contract was the individual contract of J. F. Mehaffey. Under such construction it would require proof of an individual contract as alleged in the individual petition, to support a recovery. An allegation of a contract with J. F. Mehaffey can not be proved by evidence of a contract with J. F. Mehaffey and others jointly. Glausier v. Boston Naval Stores Co., 132 Ga. 549 (64 S. E. 547). The evidence did not establish the individual contract alleged in the original petition, and the verdict should be set aside as being without evidence to support it.

Judgment reversed.

All the Justices concur.