Walter Smith, Buford E. Hancock, contra.David L. Mincey, John D. Hemingway, for plaintiffs in error.

1. The verdict was authorized by the evidence and was not subject to the criticism that the plaintiff failed to prove a right of recovery under the contract sued on, since the evidence of both parties showed the existence of an oral contract covering a specified subject matter, and differed only as to the terms agreed upon regarding rate of payment for a part of the work.

Troy Jones filed an action in the City Court of Macon against E. B. Meaders doing business as Meaders Construction Company, and its bonding company Employers' Liability Assurance Corporation, alleging that the main defendant was a general contractor; that the plaintiff had an oral agreement with him as a masonry subcontractor to lay brick at the rate of $45 per thousand and cement blocks at the rate of $.19 each on a certain project; that the plaintiff laid 341,000 brick and 3,000 blocks; that he has been paid the sum of $12,945 and, with a small credit, there is still owing him a balance of $2,911.37. The defendant answered that his contract with the plaintiff was to lay brick at the rate of $41 per thousand (with a bonus of $2.00 per thousand if he made a certain profit); that the sum of $570 for laying concrete blocks is correct; that the plaintiff laid only 323,000 brick; that he has been paid $13,270; that because of the faulty manner in which the plaintiff did his work, and because he did not provide sufficient scaffolding as agreed, the plaintiff is liable to him in a balance of $5,123.73 on an itemized list of damages.

On the trial there was undisputed evidence that the defendant Meaders and Herman A. Simmons had engaged in a partnership doing business as M. & S. Construction Company which was dissolved in May, 1957; that as such company they had submitted a bid for the project in question which had been rejected; that during the course of negotiations Simmons and the plaintiff had had a conversation and reached an agreement which, according to the plaintiff, was to the effect that if M. & S. Construction Company got the job he would be employed to do the masonry work at the rate, of $45 per thousand brick with scaffolding to be furnished by the general contractor; that the plaintiff knew the company did not receive the bid and knew the partnership was dissolved in June, when he did a sample wall of brick for the approval of the architect; that the plaintiff worked for Meaders Construction Company beginning in September or October of 1957; that he had a drawing account and drew out such funds as he felt he needed at the end of each week; that in April, 1958, the defendant felt he was overdrawing; there was a disupte as to the amount he was to be paid for the brick, and the plaintiff ended his employment. It was also undisputed that the M. & S. Construction Company had in the first instance been low bidder on the project but had been refused, in the defendant's opinion, because of Simmons' low credit rating; that the partnership was dissolved for this reason and Meaders Construction Company resubmitted a bid which was accepted; that Meaders retained Simmons as his general superintendent on the construction job and Simmons had charge of the building while Meaders looked after the administrative end of the business; that the agreement between the men was that Simmons should receive $100 per week plus a profit split at the end of the job. The plaintiff contended the defendant told him he was keeping Simmons on as a secret partner but taking his name off the firm; the defendant stated this was not true and that he did not remember so stating. The plaintiff's testimony was that he had no conversation whatever with the defendant as to the rate for brick laying but relied upon his conversation with Simmons. The defendant testified to a specific agreement between the men at the rate of $41 per thousand, with a $2.00 per thousand bonus if the job showed a stipulated profit, and the testimony of another witness tended to corroborate this understanding. The conversation was denied by the plaintiff. There was other evidence in sharp conflict both as to the party upon whom the liability for erection of scaffolding fell and on the items making up the defendant's cross-action for damages for failure to properly perform the work.

The jury returned a verdict in favor of the plaintiff for $1400. The defendant filed his motion for new trial on the general grounds plus two special grounds complaining of the court's failure to charge certain principles of law, and the denial of this motion is assigned as error.

1. It is contended by the plaintiff in error, first, that there is no evidence to justify a verdict in favor of the plaintiff, and, secondly, that the plaintiff is not entitled to recover except under the terms of a contract as pleaded and proved by himself. It is always true that one cannot recover on a cause of action, no matter how well sustained by proof, which is different from or at material variance with the cause of action set out in the declaration. Williams v. Eldridge, 91 Ga. App. 11 (84 S. E. 2d 716). There was, however, some slight evidence to sustain the contract as alleged between the plaintiff and Simmons, because of the plaintiff's testimony that Simmons was not only the defendant's agent in charge of the building but was in fact continuing to operate with him in a partnership relation. It is not necessary, however, to sustain the verdict on this theory. It was not denied that an oral contract existed between the parties; that the subject matter of the contract was the laying of brick and cement blocks on the project in question; that this contract was at least in part performed. The plaintiff contended that one of the terms of the contract was a rate of $45 per thousand for brick, as against the defendant's contention of $41 per thousand. As was staLed in McClelland v. Carmichael Tile Co., 94 Ga. App. 645, 649 (96 S. E. 2d 202): "A fair evaluation of the record shows, not that the plaintiff proved a contract different from the contract alleged, but that both the plaintiff and the defendant agreed upon the existence of the same contract, and the only dispute was as to one of its terms--that is, the amount to be paid for the services performed." Under the defendant's own pleadings he was indebted to the plaintiff under this contract for the sum of $543, subject to the sums sought to be recovered in the cross-action. The jury is at liberty, where the evidence is in dispute, to believe a part of the evidence of one witness while rejecting other parts, and to combine that portion of the testimony which they believe with a part of the testimony of other witnesses in the case. Scott v. Imperial Hotel Co., 86 Ga. App. 844 (8) (72 S. E. 2d 816); Carlisle v. Ragan-Malone Co., 17 Ga. App. 435 (2) (87 S. E. 608).

The trial court did not err in denying the motion for new trial.

1960