Davenport v. Pope , 96 Ga. App. 799 ( 1957 )

96 Ga. App. 799 (1957) 101 S.E.2d 614

DAVENPORT
v.
POPE et al.

36908.

Court of Appeals of Georgia.

Decided November 27, 1957. Rehearing Denied December 17, 1957.

Oze Horton, for plaintiff in error.

Cecil Hughes, contra.

FELTON, C. J.

An action for quantum meruit cannot by amendment, either by pleading or by evidence unobjected to, be converted into one on an express contract. Kraft v. Rowland & Rowland, 33 Ga. App. 806, 808 (128 S.E. 812). For the same reason recovery cannot be had on an express contract in an action predicated on quantum meruit. Thus, where the plaintiff sues on quantum meruit for the reasonable value of services rendered, but her evidence conclusively shows that, if she was entitled to recover, she was entitled to a five percent commission on a definite sum, a verdict is demanded for the defendant. Under these circumstances the other alleged errors, if in fact errors, were harmless.

The court did not err either in disallowing the amendment or in denying the amended motion for a new trial.

Judgments affirmed. Quillian and Nichols, JJ., concur.