Davenport v. Pope
| Citation | 96 Ga.App. 799,101 S.E.2d 614 |
| Decision Date | 27 November 1957 |
| Docket Number | No. 1,No. 36908,36908,1 |
| Parties | Elizabeth H. DAVENPORT v. G. M. POPE et al |
| Court | Georgia Court of Appeals |
Oze R. Horton, Hapeville, for plaintiff in error.
Cecil Hughes, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
An action for quantum meruit cannot by amendment, either by pleading or by evidence unobjected to, be converted into one on an express contract. Kraft v Rowland & Rowland, 33 Ga.App. 806, 808, 128 S.E. 812. For the same reason recovery cannot be had on an express contract in an action predicated on quantum meruit. Thus, where the plaintiff sues on quantum meruit for the reasonable value of services rendered but her evidence conclusively shows that if she was entitled to recover, she was entitled to a five percent commission on a definite sum, a verdict is demanded for the defendant. Under these circumstances the other alleged errors, if in fact errors, were harmless.
The court did not err either in disallowing the amendment or in denying the amended motion for a new trial.
Judgment affirmed.
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