33 Ga. App. 806 | Ga. Ct. App. | 1925
(After stating the foregoing facts.)
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.
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, bul in which the amount to be paid was not stipulated. Wilson v. Lattimore, 135 Ga. 469 (1); Cooney v. Foote, 15 Ga. App. 455 (3). 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; Bright v. Central City Street R. Co., 88 Ga. 535; Bartow Guano Co. v. Adair, 29 Ga. App. 644 (1). On the other hand, it seems to be the rule in this State that a suit on an account or a quantum meruit can not be converted by amendment into a suit on an express contract. Pittman v. Hodges, 13 Ga. App. 25: Jones v. Schachter, 31 Ga. App. 709 (3), 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
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
“Where there is a special contract which has been performed on one side, and there is nothing left to be performed but payment on the other, a recovery can be had either upon the contract or upon a general indebitatus assumpsit or quantum meruit.” Hill v. Balkcom, 79 Ga. 444; Baker Lumber Co. v. Atlantic Mill & Lumber Co., 24 Ga. App. 749 (1); Myers v. Aarons, 30 Ga. App. 750 (1).
It was further ruled in the Anglin case that “So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action.” In that case the court reaffirmed the doctrine of Maxwell v. Harrison, 8 Ga. 61: “The true criterion for determining whether an'amendment is admissible we take to be this—whether the amendment proposed is another cause of controversy, or whether it is the same contract or injury, and a mere .permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof, and the merits of his case. For, while the plaintiff can hot introduce an entirely new cause of action, he may nevertheless add a new count, substantially different from the declaration, provided he adheres to the original cause of action.”
We are of opinion that the amendment clearly complained of the same wrong or cause of controversy as laid in the original petition, and that it was not objectionable as setting forth a new and
IVe conclude that in the present case the court did not err in allowing the proffered amendment.
The verdict was founded upon the amendment or second count. It is insisted that the verdict is not supported, because of the failure of the evidence to establish the value of the services rendered. It appears that the defendant had previously listed the property for sale with the plaintiffs for a limited time, at a valuation of $55,000. The time expired without a sale, and the present action is to recover for services under a. subsequent agreement by which the plaintiffs were employed to procure a purchaser for the property at a valuation of $42,000.
A witness for the plaintiffs, who represented them in the dealings with the defendant, testified that the exact commission on a sale at the latter valuation would have been $1175, but that in the negotiations, by which the plaintiff was seeking to obtain the signature of the defendant to a binding agreement of purchase and sale already signed by the purchaser, the defendant raised objection to this amount. The witness further testified: “I told [the defendant] Eowland & Eowland might accept $1000. He told me. to bring him that in writing. I did. The paper is the agreement [referring to a document in evidence], I took it to him and showed it to him. He still wanted to balk on the commission; he talked of further reduction on the commissions, and asked me-
Assuming that the evidence of this witness should be construed not as expressing the witness’s opinion as to the value of the services, but as undertaking merely to say what the commissions should amount to under the rules and customs of local real-estate brokers, it was not without some probative value. In Camilla Cotton Oil Co. v. Walker, 21 Ga. App. 603 (1), which was a suit involving a diminution of the plaintiff’s earning capacity as a machinist of three years’ experience, it was held not error to allow the plaintiff to testify “as to what [were] the usual and customary wages of an expert machinist in this community at that kind of business.” In Dillard v. Hollzendorf, 140 Ga. 17, in which the value of the services of a physician was a pertinent matter of inquiry, the Supreme Court held: “Testimony that physicians in the locality of the venue of the suit were accustomed to charge certain fees for visits to patients was not inadmissible on the ground that such testimony was irrelevant and immaterial; no point being made that it did not appear that the charges in the two localities were similar.” “Prices at which similar articles are sold” may be considered as a circumstance in determining the value of particular property. Morrow Transfer Co. v. Robinson, 8 Ga. App. 409. There is no conflict between any of the rulings last referred to and the ruling in Western & Atlantic R. Co. v. Calhoun, 104 Ga. 384 (1). Value, as any other matter to be proved, may be shown circumstantially or inferentially as well as directly or positively. Ayers v. State, 3 Ga. App. 305 (4); Farm Products Co. v. Eubanks, 29 Ga. App. 604. By the other evidence the jury were fully informed as to the nature and extent of the services which the plaintiffs claimed to have rendered, and as to all the attendant circumstances. An opinion by the witness as to the value of the service,
The plaintiffs alleged that the terms of the sale were that the purchaser should pay for the property $42,000, of which $12,-000 should be in cash and of which $30,000 should be in the assumption by the purchaser of an outstanding loan on the property, obtained by the defendant owner, in the sum of $30,000; and the evidence tended to establish these allegations. In these circumstances it is insisted by the plaintiff in error -that a recovery of commissions in the sum of $150 was unauthorized; the contention being that the commission should be calculated only upon the valuation of the defendant’s equity, and that, since this was only $12,000, the commissions awarded by the verdict were excessive.
Even if the sale were considered as involving but $12,000, we should hardly be able to say as a matter of law that the commissions were excessive. But the jury were not bound, even if they would have been authorized, to consider only the amount which the defendant required to be paid to him in cash as the valuation of his equity, in determining the value of the services rendered. Under the terms of the sale, which the plaintiffs contended the defendant had agreed to, the assumption of the loan of $30,000 had as much bearing upon the magnitude of the transaction as if the defendant had stipulated for the payment of the same in cash. If the sale had been made the defendant would have received the equivalent of $42,000, in that as between him and the purchaser he not only would have received $12,000 in cash but would have been relieved of a debt in the sum of $30,000; so that in determining the amount of the commissions justly earned it was clearly the right, if not the duty, of the jury to consider the transaction as involving property of the value of $42,000.
Judgment affirmed.