Hirsch's v. Adams
| Decision Date | 06 June 1968 |
| Docket Number | No. 43637,No. 2,43637,2 |
| Citation | 162 S.E.2d 243,117 Ga.App. 847 |
| Parties | HIRSCH'S v. William L. ADAMS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
On the trial of a complaint for salary allegedly owed the plaintiff by the defendant, the trial court did not err in denying the defendant's motion for mistrial on the ground of surprise by the plaintiff's change of legal theories from express contract to quantum meruit, when the defendant made no pre-trial motion to limit the issues and no motion for a continuance or to require the plaintiff to amend his complaint, and it does not appear that the defendant was actually prejudiced.
Haas, Holland, Freeman, Levison & Gibert, Edward L. Greenblatt, Atlanta, for appellant.
James H. Neal, Joseph B. Kilbride, Atlanta, for appellee.
The defendant appeals from a judgment for the plaintiff in an action for salary allegedly owed him by the defendant. The complaint alleged that the defendant was indebted to the plaintiff for a stated sum 'as salary for labor and work performed by plaintiff for defendant from August 1, 1966, until April 1, 1967, at which time defendant terminated plaintiff's employment.
At the trial the court excluded evidence offered to prove an express contract. The court then permitted the plaintiff, over the defendant's objection, to present evidence to support his claim on the ground of quantum meruit. The defendant enumerates as error the court's refusal to grant him a mistrial or continuance on the ground that he was surprised and prejudiced by the plaintiff's shift in legal theories during the course of the trial. The defendant argues that he had no notice that the plaintiff was seeking relief on quantum meruit and that the plaintiff should have been required to amend his petition to set forth this ground.
1. The complaint adequately stated a claim for relief. . ga.Laws 1966, pp. 609, 619 (Code Ann. § 81A-108). We cannot say that the complaint, quoted above, was limited to seeking relief upon an express contract; but it entitled the plaintiff to relief upon any ground by which the alleged indebtedness could be proved. The record shows that there was no pre-trial orders limiting the issues.
Moreover, under the Georgia Civil Practice Act a plaintiff may sue on one theory and recover on another. 'The fact that this involves a change in the nature of the cause of action, or the legal theory of the action, is immaterial so long as the opposing party has not been prejudiced in presenting his case. * * * the lack of an amendment does not affect the judgment in any way.' 3 Moore's Federal Practice 985, 990, § 15.13(2). (Respecting amendment of pleadings, Section 15(b) of the Georgia Civil Practice Act, Ga.Laws 1966, pp. 609, 627 (Code Ann. § 81A-115(b)) is identical with Rule 15(b) of the Federal Rules of Civil Procedure.)
The record does not show that the defendant made a motion that the court require the plaintiff to...
To continue reading
Request your trial
-
McDaniel v. Gangarosa
...Douglas v. American Cas. Co., 106 Ga.App. 744, 128 S.E.2d 364; Walburn v. Taunton, 107 Ga.App. 411, 130 S.E.2d 279; Hirsch's v. Adams, 117 Ga.App. 847, 162 S.E.2d 243; and Mabry v. Henley, 123 Ga.App. 561, 181 S.E.2d 884, are not contrary Furthermore, even if the admissibility of the eviden......
-
General Ins. Services, Inc. v. Marcola, s. A97A1846
...the action, is immaterial so long as the opposing party has not been prejudiced in presenting his case....' [Cit.]" Hirsch's v. Adams, 117 Ga.App. 847, 848(1), 162 S.E.2d 243. Here, defendant GIS did not request a continuance in order to meet the new evidence nor did it demonstrate to the t......
-
E.D. Lacey Mills, Inc. v. Keith
...enforcement of the original agreement for compensation and not a promise for a future increase in compensation. See Hirsch's v. Adams, 117 Ga.App. 847, 162 S.E.2d 243 (1968); Rhine v. Sanders, 100 Ga.App. 68, 110 S.E.2d 128 (1959). Hans Godo Frabel v. Brennan's of Atlanta, 151 Ga.App. 379, ......
-
Williams v. Claussen-Lawrence Const. Co.
...meruit for work performed on Cardinal Road if the evidence on trial of the case sustains the latter theory. See Hirsch's v. Adams, 117 Ga.App. 847, 848, 162 S.E.2d 243; Ford v. Smith, 25 Ga. 675, 679; Sentell & Pursell v. Mitchell, 28 Ga. 196, 199; Dolan v. Lifsey, 19 Ga.App. 518(4), 91 S.E......