Kraft v. Rowland & Rowland
| Decision Date | 11 April 1925 |
| Docket Number | 15908. |
| Citation | 128 S.E. 812,33 Ga.App. 806 |
| Parties | KRAFT v. ROWLAND & ROWLAND. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 15, 1925.
Syllabus by the Court.
Questions not referred to in the brief or argument of counsel for the plaintiff in error, will be treated as abandoned.
A suit to recover for services rendered as under a contract of employment, in which the amount to be paid was stipulated may be amended by the addition of a new count, predicated upon the same transaction, and seeking a recovery of the value of the services as under a contract of employment in which the amount to be paid was not stipulated.
In this action by a real estate broker, containing a count for the recovery of the reasonable value of services alleged to have been rendered, the evidence having informed the jury as to the character and extent of the services rendered and as to all the attendant circumstances, and there being some evidence as to what were the common or ordinary charges among real estate brokers for services of like character in the same community, it cannot be said that there was nothing on which the jury might base a verdict in favor of the plaintiff.
Where an owner of property engages the services of a broker to obtain an agreement from another to buy it at a price stipulated, a part of which is to be paid in cash representing the price of the owner's equity, and the remainder of which is to be satisfied by the purchaser's assuming an outstanding indebtedness for a loan upon the property, previously incurred by the owner, and where the broker, after compliance with his agreement, brings a suit against the owner to recover the reasonable value of his services, the jury, in determining the amount to be awarded may take into consideration the price of the entire property and are not confined solely to a consideration of the price of the owner's equity.
Where an owner of property, without any agreement as to the compensation he will pay for the services, employs a broker to procure from a designated person an obligation in writing, whereby that person is to become bound to purchase the property and the owner is to become obligated to sell it, at the price and on the terms stipulated by the instrument, and where the agent fully complies with the terms of his employment, but the owner, without any fault on the part of the agent or the purchaser, refuses to make the sale, the broker may recover the reasonable value of his services as upon a quantum meruit, under the law of implied contract.
Error from City Court of Savannah; Davis Freeman, Judge.
Action by Rowland & Rowland against Samuel Kraft. Judgment for plaintiff, and defendant brings error. Affirmed.
Lawrence & Abrahams and David S. Atkinson, all of Savannah, for plaintiff in error.
McIntire, Walsh & Bernstein, of Savannah, for defendant in error.
BELL, J. (after stating the facts as above).
1. There was a demurrer to the original petition, and exceptions pendente lite were duly filed to the action of the court in overruling it. Although in the bill of exceptions error is assigned upon the exceptions pendente lite, there is no reference thereto in the brief of counsel for the plaintiff in error, and these exceptions will be treated as abandoned. The only grounds for reversal insisted upon are those referred to below.
2. Did the court err in allowing the amendment? The original petition was a suit for the recovery of the value of services rendered by the plaintiffs under a contract of employment in which the amount to be paid was stipulated. In the amendment it was alleged that the plaintiffs were acting "under an employment" with the defendant, and that they had completed "their contract." In view of this and of the other language used, the amendment is construed as seeking a recovery for the value of services rendered by the plaintiffs, under a conventional agreement or contract whereby the plaintiffs were employed to render the services, but in which the amount to be paid was not stipulated. Wilson v. Lattimore, 135 Ga. 469 (1), 69 S.E. 740; Conney v. Foote, 15 Ga.App. 455 (3), 83 S.E. 896. It does not appear in the amendment that there was any express agreement to pay even the reasonable value of the services. An obligation, however, to pay whatever they were worth, would be implied. Civil Code 1910, § 5513.
It was held, in Gray v. Bass, 42 Ga. 270 (1), that a count on an implied contract may be joined with one on a special contract, and that too by amendment. See, also, Cox v. Georgia R. Co., 139 Ga. 532, 77 S.E. 574; Bright v. Central City Street R. Co., 88 Ga. 535, 15 S.E. 12; Bartow Guano Co. v. Adair, 29 Ga.App. 644 (1), 116 S.E. 342. On the other hand, it seems to be the rule in this state that a suit on an account or quantum meruit cannot be converted by amendment into a suit on an express contract. Pittman v. Hodges, 13 Ga.App. 25, 78 S.E. 688; Jones v. Schacter, 31 Ga.App. 709 (3), 121 S.E. 691, and citations.
While the plaintiffs in their amendment, as in their original petition, alleged an agreement for their employment, they relied in the amendment solely upon the implication of the law to establish the defendant's promise to pay. See Jackson v. Buice, 132 Ga. 51 (1), 63 S.E. 823. There appears no other substantial difference between the original suit and the amendment. See the italics above. The cause of action as first laid, did not subsist alone in the agreement between the parties, but arose from the combined facts of the contract, the rendition of the services, and the defendant's refusal to pay. City of Columbus v. Anglin, 120 Ga. 785 (5), 48 S.E. 318. If, as we have seen, a suit upon an express contract may be amended by the addition of a count upon an implied contract, a fortiori an amendment would be permissible where it invoked the law of implied contract only for the purpose of filling up a gap in an express contract. The amendment did not seek to add new terms to the agreement as set out in the original petition, but relies merely upon the law to fill a vacuum in regard to the matter of compensation, which appeared in the original suit to have been covered by express understanding. In other words, it was declared in the suit, as originally framed, that the parties had agreed upon two matters: Firstly, that the plaintiffs should perform for the defendant certain services; and, secondly, that upon the performance thereof the defendant would pay to the plaintiffs a certain sum of money as their compensation--while in the amendment it is shown that the parties agreed upon one matter only, namely, that the plaintiffs would render the services. Thus far the new count is substantially identical with the old; and as to the second matter it does not substitute a new agreement, but relies upon the law to supply one where none had been made by the parties themselves. This we think distinguishes the case at bar from the case of Lamar v. Lamar, 118 Ga. 850, 45 S.E. 671, wherein the Supreme Court held that, in a suit for a breach of contract, the petition cannot be amended by abandoning the contract first alleged and setting up another and different contract. In that case the plaintiff sought by amendment to substitute certain express terms of the agreement for other express terms set out in the original petition. The case was not one in which the plaintiff merely sought by amendment to supply a hiatus in the agreement through the aid of the law.
Permission was given in the Anglin Case for the review of all the Georgia cases upon the question of when an amendment would add a new and distinct cause of action, and a number of cases were overruled in so far as they were in conflict with the decision then rendered, including one of the cases (Cox v. Murphy, 82 Ga. 623, 9 S.E. 604), cited as authority in the Lamar Case, and including "also so much of any other case as" conflicted with the ruling then announced. We take it that the Lamar Case was not among those overruled, since it has been cited with approval in one of the Supreme Court's later decisions (Muller Bank Fixture Co. v. Georgia, etc., Association, 143 Ga. 940 [1], 85 S.E. 1018), and distinguished in another ( National Surety Co. v. Farmers' Bank, 145 Ga. 461 [2], 469, 89 S.E. 581). It has also been cited twice by this court since the decision in the Anglin Case. McKenzie v. Miller, 6 Ga.App. 828 (2), 65 S.E. 1071; Mauldin v. Gainey, 15 Ga.App. 353 (2), 83 S.E. 276. But we do not think that the Lamar Case is authority in the present case, for the reason that the facts of the two cases are essentially different.
In that case the court reaffirmed the doctrine of Maxwell v. Harrison, 8 Ga. 61, 52 Am.Dec. 385:
...
To continue reading
Request your trial