Wilson v. Cunningham

• Decision Date: 03 February 1988
• Docket Number: No. 75666,75666
• Parties: WILSON et al. v. CUNNINGHAM et al.
• Court: Georgia Court of Appeals

Page 534

365 S.E.2d 534

185 Ga.App. 734

WILSON et al. v. CUNNINGHAM et al.

No. 75666.

Court of Appeals of Georgia.

Feb. 3, 1988.

Kirby G. Bailey, Decatur, for appellants.

Gail T. Joyner, for appellees.

BANKE, Presiding Judge.

This suit was filed by "D & E Construction Company" to recover a balance of approximately $5,500 allegedly owed by the appellees for work performed pursuant to two construction contracts. Both these contracts were signed by Ernest Wilson as president of "D & E Construction Company, Inc." Because there was in fact no such corporation in existence, the complaint was later amended to substitute as plaintiffs "Ernest Wilson and Deadra T. Wilson, doing business under the tradename of D & E Construction Company." The appellee defendants thereupon filed an amended answer asserting that their contracts were with D & E Construction Company, Inc., and not with a general partnership comprised of Ernest and Deadra Wilson, and that because no such corporation existed they could not be held liable under the contracts. Immediately prior to the scheduled trial of the case, the trial judge granted a motion by the appellees for the dismissal of the action based on this defense. The present appeal followed. Held:

1. In Block v. Voyager Life Ins. Co., 251 Ga. 162, 163(1), 303 S.E.2d 742 (1983), the Georgia Supreme Court held that where "the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment." Accord Dixon v. Farmers Furniture, 180 Ga.App. 463(1), 349 S.E.2d 468 (1986); Youmans v. Riley Properties, 180 Ga.App. 176, 349 S.E.2d 1 (1986). See also Motorcycle Stuff v. Bryant, 182 Ga.App. 554, 356 S.E.2d 521 (1987).

It is alleged in the amended complaint that the appellees retained the appellants, doing business as D & E Construction Company, to perform certain work on their property and that the APPELLANTS subsequently performed such work. It follows that the appellants have asserted a claim in quantum meruit to recover for their services, irrespective of the validity of the written contract itself. Accord Starling, Inc. v. Housing Auth. of Atlanta, 162 Ga.App. 852(2), 293 S.E.2d 392 (1982).

"A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiffs [cit.], plaintiff can establish no set of facts that...