Brumby v. SMITH & PLASTER CO. OF GEORGIA , 123 Ga. App. 443 ( 1971 )

Pannell, Judge,

concurring specially. The majority state that

on a quantum meruit "it then becomes a jury question as to whether the owner has in fact been benefited by the work and, if so, to what extent.” I disagree with this statement. If a recovery is had upon a quantum meruit for work done not according to contract, acceptance of the work must be proven. It then becomes a jury question, not only as to whether the owner has in fact been benefited by the work and, if so, to what extent; but the jury must also determine whether the work was accepted by the owner. In other words, the ruling should be: "It then becomes a jury question as to whether he has accepted the work done not according to contract, and has in fact been benefited by the work, and, if so, to what extent.” I agree with the majority that the judgment, as rendered here, was supported by the evidence both as to the acceptance of the work done, and as to the value of the benefit received, and both are required.