Jeffcoat v. Deas , 33 Ga. App. 26 ( 1924 )

Luke, J.

1. In an action against an administrator on an alleged implied contract for the reasonable value of services alleged to have been rendered to the decedent during her lifetime and covering a period commencing six years prior to the suit, where the defendant denies the material allegations of the petition and specially pleads the statute of limitations, the burden is upon the plaintiff to prove not only that the services were rendered as alleged in his petition, but that they were so rendered, or that the alleged debt became due, within the period prescribed by statute for the limitation of such actions.

Decided November 12, 1924. IF. I. Gurry, for plaintiJI in error. IF. E. Fleming, contra.

(a) Applying these principles to the facts of the instant ease, the evidence did not authorize the verdict for the plaintiff.

2. The suit was in part to recover the alleged value of certain articles of personalty alleg'ed to have been in the decedent’s “possession at the time of her death, belonging to” the plaintiff; but there was neither allegation nor proof that the decedent’s possession was wrongful, or that she was under any implied obligation to pay for such articles, or that the administrator ever in fact came into possession of any of them. The plaintiff, therefore, was not entitled to a recovery on that account.

3. The judgment overruling defendant’s motion for a new trial was erroneous, because the evidence did not authorize the verdict.

Judgment reversed.

Broyles, O. J., and Bloodworth, J'., concur.