Thomas McDonald & Co. v. Elliott, 35701
| Citation | 92 Ga.App. 409,88 S.E.2d 440 |
| Decision Date | 07 July 1955 |
| Docket Number | No. 35701,No. 1,35701,1 |
| Court | Georgia Court of Appeals |
| Parties | THOMAS McDONALD & COMPANY v. J. A. ELLIOTT |
Syllabus by the Court.
1. Where the first two counts of the petition were based on an express contract, the court did not err in disallowing the amendments setting out a third count based on quantum meruit, which amendments showed that the only rights the plaintiff had were under the express contract.
2. The evidence authorized the verdict for the defendant; therefore, the court did not err in denying the motion for a new trial based on the general grounds.
Thomas McDonald, doing business as Thomas McDonald & Company, sued J. A. Elliott for a brokerage commission. The petition was in two counts, which were based on an express contract. By amendments the plaintiff sought to allege a third count based on quantum meruit. The court disallowed these amendments. On the trial the jury returned a verdict for the defendant. The plaintiff's motion for a new trial, based on the general grounds, was denied and the plaintiff excepts to that judgment and to the disallowance of his amendments.
Saul Blau, Charlie Franco, Atlanta, for plaintiff in error.
Carl T. Hudgins, Decatur, for defendant in error.
1. Counts one and two of the original petition sought to recover commissions as stipulated under an exprss contract. By amendments the plaintiff sought to add a third count based on quantum meruit, and the contract was annexed as an exhibit to count three. The court properly disallowed the amendments setting up a third count. The contract provided that, should the defentant-owner sell the business during the period of the plaintiff's exclusive listing, the plaintiff-broker would still be entitled to a commission of 10% of the sales price. Where there is a special contract between the parties, a recovery on quantum meruit cannot be had. See cases cited under catchword, 'Special Contract,' Code Ann. § 3-107.
2. The plaintiff's evidence was to the effect that he entered into a brokerage contract with the defendant whereby the plaintiff was to sell the defendant's business; that the contract was entered into on March 3, 1954; that the entered into on March exclusive listing with the plaintiff for a period of 60 days, and that, should the defendant himself sell the business during the period of the exclusive listing, the plaintiff would be entitled to a commission of 10% of the sales price;...
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..."Where there is a special contract between the parties, a recovery on quantum meruit cannot be had.' Thomas McDonald & Co. v. Elliott, 92 Ga.App. 409, 410, 88 S.E.2d 440, 441; Kuniansky v. Williams, 101 Ga.App. 678, 680, 115 S.E.2d 204. See cases cited under catchword, 'Special contract,' C......
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Millican Elec. Co. v. Fisher, s. 38232
...of a single count predicated on the theory of quantum meruit is sufficient to subject the count to demurrer (Thomas McDonald & Co. v. Elliott, 92 Ga.App. 409, 88 S.E.2d 440), and, in the instant case, on the additional ground that the pleadings do not claim value for authorized services ove......
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Ford v. Harden
...contract a recovery upon an implied obligation to pay a just and reasonable commission would not be authorized. Thomas McDonald & Co. v. Elliott, 92 Ga.App. 409(1), 88 S.E.2d 440. 4. The sole defense interposed was that the contract which the plaintiff broker pleaded had been altered, in th......
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Kingston Development Co., Inc. v. Kenerly
...'Where there is a special contract between the parties, a recovery on quantum meruit cannot be had.' Thomas McDonald & Co. v. Elliott, 92 Ga.App. 409, 410, 88 S.E.2d 440, 441. 6. The next enumeration of error deals with disposition in the trial court of a defense which had been added by ame......