dissenting. C & S Realty Company, as plaintiff, sued Lucy B. Williamson et al., defendants, in tort for conspiring with a lessee of rental premises to defeat the plaintiffs right to commissions under a lease contract.
Although the case was in default, defendants, as they had the right to do, contested the question of damages, which were unliquidated. See Code Ann. § 110-401 (Ga. L. 1946, pp. 761, 777; 1952, p. 195; 1953, Nov. Sess., pp. 440, 451; 1962, pp. 687, 688) and Code Ann. § 81A-155 (a) (§ 55, CPA; Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238).
The parties entered into a stipulation that 5% commission fee for each month of the new lease would amount to $1,722.50.
The majority reverses, and contends that although plaintiff was suing in tort, it had chosen as its measure of damages the amount it would have recovered under a lease and therefore "its right to recovery may rise no higher than it would have in that circumstance ... it would not have been able to seek recovery for its percentage of future rental instalments until those instalments became due. ” In other words, the majority holds that because plaintiff calculates its damages by the commissions that would have been due at the end of the lease, it must therefore stand or fall as it would have had it sued on contract. With this premise we are in violent disagreement.
The majority cites in support of its position Code § 20-1401; Nicholes v. Swift, 118 Ga. 922, 926 (45 SE 708) and Stevenson v. Allen, 94 Ga. App. 123 (93 SE2d 794). But in each of the foregoing citations the question was as to suit on contract, and not as to suit ex delicto. If plaintiff here had filed suit on contract, no commissions would have been due on rental payments which had not yet become due. But suit on tort is an entirely different matter, and simply because plaintiff chooses to show his damages by pointing to the total commissions he has earned and would have earned in the future under the contract, this in no wise requires that his suit be governed by the rules as to a suit ex contractu.
On this point we quote Chappell v. Western R., 8 Ga. App. 787 (2, 3) (70 SE 208): "An act and a neglect may be both a breach of a contract and a tort. In such cases the plaintiff has his election as to whether he will sue ex contractu or ex delicto; but the measure *596of damages in the two cases is usually different; and often the question whether the damages which the plaintiff seeks to recover are too remote or not depends upon whether he has sued in the one form or the other. A contract may be breached either in such of its terms as are express or in such of its terms as arise from reasonable implication; and in such cases, the plaintiff may recover such damages as the parties should reasonably have contemplated would result from a breach.” We quote also Lipscomb v. Watkins, 28 Ga. App. 185 (1) (110 SE2d 502) as follows: "When the action is on the contract the damages must necessarily be confined to such as were in legal contemplation within the minds of the contracting parties; whereas, in a suit in tort the injured party is limited only by the rule which requires that the damages must have followed directly and as the natural consequence of the act complained of.”
The majority opinion correctly states the rule as applied to cases brought ex contractu. But an entirely different rule governs the measure of damages in cases brought ex delicto. Where suit is brought ex contractu to recover commissions due for breach of a rental contract, no recovery may be had for commissions not yet collected because not yet due. But as to an action brought ex delicto (and the suitor has his choice — his election — as to whether to sue in tort or in contract) the plaintiff may recover commissions not only on rent due and collected, but on rent not yet due and not yet collected. The measure of damages in an ex delicto action is "... the amount which he would have earned under the terms of the contract.” (Emphasis supplied.) See Kerr v. DuPree, 35 Ga. App. 122 (2) (132 SE 393). The above language is quoted verbatim from the last line in the second headnote of the above authority, and leaves it beyond peradventure of doubt that in a tort action plaintiff may recover "the amount which he would have earned”— and not just the amount that has been already earned at time of filing suit.
I therefore respectfully dissent from the majority opinion in this case, and would affirm the judgment of the trial court in favor of plaintiff.
I am authorized to state that Judge Pannell joins in this dissent.