Bennett v. Burkhalter

• Decision Date: 13 April 1907
• Citation: 128 Ga. 154,57 S.E. 231
• Parties: BENNETT v. BURKHALTER.
• Court: Georgia Supreme Court

57 S.E. 231

128 Ga. 154

BENNETT

v.BURKHALTER.

Supreme Court of Georgia.

April 13, 1907.

1. Contracts—Action for Breach—Instructions.

It appearing that the plaintiff based his right to a recovery upon an express contract, which he contended had been fully performed and executed, and his contention having been put in issue by the pleadings and evidence of the defendant, it was not error for the court to instruct the jury that, if they should find that there was a contract between the parties to the case, the parties would be bound thereby, and that "courts and juries do not make contracts for people; but, if they ascertain that a contract is made, then it is the duty of courts and juries to enforce the contract as made by the parties."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1829, 1830.]

2. Same—Evidence.

While courts will enforce valid contracts as made by the parties, the party seeking the enforcement of an alleged executed contract should show performance upon his own part; otherwise he would not be entitled to a verdict against the defendant. And a failure so to charge the jury, in general terms at least, was error. (Syllabus by the Court.)

Error from Superior Court, Appling County; L. A. Parker, Judge.

Action by W. T. Burkhalter against W W. Bennett. Judgment for plaintiff, and defendant brings error. Reversed.

W. W. Bennett, J. I. Carter, and V. E. Padgett, for plaintiff in error.

N. J. Holton and W. L. Burkhalter, for defendant in error.

BECK, J. 1. This cause arose out of the conflicting contentions of the parties, who were both attorneys at law, concerning the proper division of a fee. The plaintiff in the court below (defendant in error here) based his right of action upon an express contract, by the terms of which he was to have one-half of a fee which might be recovered in a certain case pending in Tatnall superior court, which had been filed by the defendant for a suitor in said court. The fee recovered amounted to $500. While there was much evidence introduced which would have been relevant and material only to a claim based upon a quantum meruit, under the petition and the evidence introduced by the plaintiff, he was not entitled to recover upon a quantum meruit, but was only entitled to recover upon the contract set up in his petition. If he had not performed his part of that contract, his entire right of action was destroyed by his nonperformance, in which case there should have been a verdict for the defendant; but, if his right of action had not been lost by nonperformance on his...