Gayle v. Greco

258 S.E.2d 301, 150 Ga. App. 651, 1979 Ga. App. LEXIS 2240

Opinion

Banke, Judge.

The plaintiff-appellant sued to recover reasonable compensation under an agreement whereby she was to provide nursing care for one since deceased. The executors of the estate defended. Plaintiff appeals a directed verdict in favor of the estate, an action which followed the trial court’s determination that an express agreement was not proved. Held:

"The rule is that the pleader may declare an express, non-special contract, and recover upon proof of an implied promise. But he cannot declare upon a special contract, and recover upon proof of an implied promise, nor vice versa." Hightower v. Scarborough, 79 Ga. App. 342, 344 (53 SE2d 726) (1949), quoting Jackson v. Buice, 132 Ga. 51, 54 (63 SE 823) (1908). "Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof . . .” Code Ann. § 3-107. "Whether the suit be construed as based upon an express or an implied contract, the proof necessary ... as to the amount of the services . . . and their value is the same.” Jackson v. Buice, supra. The complaint in this case alleged an agreement in very general terms, being non-specific as to term, hours, and compensation. The evidence was more than adequate to submit to the fact finders on an implied promise theory with recovery based upon quantum meruit.

Argued May 2, 1979 Decided July 10, 1979. Moore & Worthington, William C. Moore, Donald M. Samson, for appellant. Thomas R. Bryan, Jr., for appellees.

Judgment reversed.

McMurray, P. J., and Underwood, J., concur.