Seaboard Air-Line Railway Co. v. Henderson Lumber Co.

Jerkins, P. J.

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 ” one dollar 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 ear from the plaintiff, or that in its dealings with the other company it was in fact dealing with the plaintiff through its agent.

Judgment affirmed.

Stephens and Hill, JJ., concur.