Apollo Homes, Inc. v. Knowles

166 S.E.2d 644, 119 Ga. App. 239, 1969 Ga. App. LEXIS 1059

• Court: Court of Appeals of Georgia
• Decided: February 26, 1969
• Docket: 44012
• Status: Published

Opinion

Bell, Presiding Judge.

1. Plaintiff’s complaint was sufficient to state a claim upon an express contract for services as a salesman, according to the terms of which plaintiff alleged he was entitled to a commission of 10 percent ($5,880) from the sale. Ga. L. 1966, pp. 609, 619 (Code Ann. § 81A-108).

2. Defendant took this appeal from the court’s denial of defendant’s motion for judgment notwithstanding a verdict for plaintiff in the amount of $1,500. The evidence was insufficient to authorize a finding that an express contract was consummated between the parties. Moreover, the verdict was not authorized on the theory of quantum meruit. Cf. Hirsch’s v. Adams, 117 Ga. App. 847, 848 (162 SE2d 243). There was no evidence showing that defendant’s salesman Wright, who obtained plaintiff’s assistance in the transaction, had express or implied authority to employ plaintiff and obligate defendant to pay for plaintiff’s services. Cohen v. Saffer, 43 Ga. App. 746 (1) (160 SE 130). See Cable Co. v. Hancock, 2 Ga. App. 73, 74 (58 SE 319); Glisson v. Burkhalter, 31 Ga. App. 365 (3) (120 SE 664). And there was no evidence which would authorize a finding that defendant had voluntarily accepted the benefit of the unauthorized services with knowledge of plaintiff’s participation in the transaction; the element of assent, express or implied, was entirely lacking. See Code §§ 3-107, 20-107; Lawson v. O’Kelley, 81 Ga. App. (60 SE2d 380); 98 CJS 737, Work and Labor, § 13. The court erred in denying defendant’s motion for judgment n.o.v.

Submitted October 8, 1968 Decided February 26, 1969. Twitty & Twitty, Frank S. Twitty, for appellant. James C. Brim, Jr., Jackson B. Harris, for appellee.

Judgment reversed.

Quülian, J., concurs. Hall, J., concurs in the judgment.