
    5226.
    Ridgway v. Bowser & Company.
    Decided January 27, 1914.
    Complaint; from city court of Elberton — Joseph N: Worley, judge pro hac vice. August 15, 1913.
    
      W. D. Tutt, for plaintiff in error. Adams & Johnson, contra.
   Russell, C. J.

Under the ruling in Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280), a verdict may be attacked by a direct assignment of error upon the ground that no cause of action is set forth in the petition. In the present case the plaintiffs could have maintained trover, but since the suit was an action upon a contract, and both the petition and the evidence discloses that there was no privity between the plaintiffs and the defendant, the court erred in directing a verdict for the plaintiffs. Dickson v. Matthews, 10 Ga. App. 542 (73 S. E. 705).

Judgment reversed.  