Thomas McDonald & Co. v. Elliott

Felton, C. J. Counts one and two of the original petition sought to recover commissions as stipulated under an express contract. By amendments the plaintiff sought to add a third count based on quantum meruit, and the contract was annexed as an exhibit to count three. The court properly disallowed the amendments setting up a third count. The contract provided that, should the defendant-owner sell the business during the period of the plaintiff’s exclusive listing, the plaintiff-broker would still be entitled to a commission of 10% of the sales price. Where there is a special contract between the parties, a recovery on quantum meruit cannot be had. See cases cited under catchwords, “Special contract,” Code (Ann.) § 3-107. The plaintiff’s evidence was to the effect that he entered into a brokerage contract with the defendant whereby the plaintiff was to sell the defendant’s business; that the contract was entered into on March 3, 1954; that the contract provided for an exclusive listing with the plaintiff for a period of 60 days, and that, should the defendant himself sell the business during the period of the exclusive listing, the plaintiff would be entitled to a commission of 10% of the sales price; that the business was sold on or about April 1, 1954, within the period of exclusive listing and that, therefore, the plaintiff was entitled to his commission. *411 The defendant’s evidence was to the effect that the brokerage contract was entered into on March 1, 1954; that, when he signed the brokerage contract, the blanks contained therein were not filled in; that the plaintiff later filled them in; that the agreement was that the plaintiff would have an exclusive listing for only 30 days; that the plaintiff had fraudulently filled in the blank in the contract pertaining to the period of listing by inserting 60 days, instead of 30 days as agreed upon; that on March 31, 1954, the plaintiff requested and the defendant granted an extension of three days on the listing; that the business was sold by the defendant sometime between April 12 and April 15, 1954; and that the purchaser was not procured through the efforts of the plaintiff. This is a case of conflicting evidence, in which a jury had to resolve the conflict. The evidence authorized the jury to find that the brokerage contract was for an exclusive listing for a period of 30 days from March 1, 1954; that the period of listing plus the three-day extension had expired when the business was sold; and that the purchaser was not procured through the efforts of the plaintiff; therefore the verdict for the defendant was authorized. The court did not err in disallowing the amendments and in denying the motion for a new trial. Judgments affirmed. Quillian and Nichols, JJ., concur.