12 Ga. App. 237 | Ga. Ct. App. | 1913
The petition states the ease substantially as follows r The plaintiff and the defendants were engaged in the real-estate business, selling lands owned by them, as well as acting as agents for others. In the summer of 1911 the plaintiff and the defendants entered into a contract whereby it was agreed that the plaintiff was to receive five per cent, commission on all sales of real estate which “the defendants made to the prospéctive purchasers turned over to defendants by plaintiff,” and the plaintiff was to pay to the defendants a like commission for all sales that he made to orospective purchasers turned over to him by the defendants. The contract included land owned by the parties as well as land belong
By permitting a verdict to be returned in favor of the plaintiff, the judge has impliedly adjudicated that the petition sets forth a cause of action. Proving the ease as laid in the petition will prevent a nonsuit; but it will not entitle the plaintiff, as a matter of legal right, to recover, unless the petition sets forth a cause of action. See O’Connor v. Brucker, 117 Ga. 451 (43 S. E. 731), where it was held that if the petition stated no cause of action, the defendant could take advantage of the defect by a request for an instruction to the jury that the plaintiff is not entitled to recover. Of course, if the defendant calls in question the sufficiency of the petition, either by demurrer or in any other proper way, and the decision is adverse to him, he is bound to it; but this is so not because the plaintiff is entitled as a matter of law to recover, but because the defendant, having procured a decision as to the right to recover, is estopped from taking a contrary position. When the trial judge instructs a jury that the plaintiff is entitled to recover if he proves his case as laid in the petition, this is