Warren v. Key Personnel Consultants, Inc.

202 S.E.2d 210, 130 Ga. App. 22, 1973 Ga. App. LEXIS 1207

• Court: Court of Appeals of Georgia
• Decided: October 17, 1973
• Docket: 48584
• Status: Published

Opinion

Stolz, Judge.

In this action by a private employment agency to recover for services rendered in obtaining employment for the defendant under a written contract, the holding of a license as required by the statute was a condition precedent to recovery, which must have been proved, but not necessarily pleaded. See answers to certified questions No. 2 and No. 5, Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899). "Accordingly, at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure [which is true in the instant case under the answer to certified question No. 1], it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery.” (Emphasis supplied.) Management Search, Inc. v. Kinard, 231 Ga. 26, 29, supra.

Submitted September 6, 1973 Decided October 17, 1973. Thomas C. Jones, Jr., for appellant.

In the case at bar, the plaintiff proved that it held a license for the year ending April, 1974, but failed to either plead or prove that it held such license at the time the contract was entered into, i.e., August 1, 1972.

Accordingly, the judgment of the trial judge, presiding as trier of fact without a jury, in favor of the plaintiff, is not supported by the evidence, and must be reversed.

Judgment reversed.

Eberhardt, P. J., and Pannell, J., concur.