concurring specially.
While I concur fully in Division 1, I cannot agree with all of the reasoning in Division 2.
The amount claimed in the complaint was, in my opinion, unliquidated. The face of the complaint tells us that the amount had not yet been ascertained. Plaintiff was unsure of the amount of commissions owed. “Liquidation is a fixed and determinate valuation of things, which, before, were uncertain. A debt is liquidated when it is rendered certain what is due, and how much is due — cum certum est *469an et quantum debeatur.” Bartee v. Andrews, 18 Ga. 407, 410 (1855). As asked in that case, “When did that amount become certain?” Id. at 410. Ryan v. Progressive Pub. Co., 16 Ga. App. 83, 89-90 (84 SE 834) (1915) discusses the distinction and quotes Justice Lumpkin in Hargroves v. Cooke, 15 Ga. 321, 332 (1854), who asked the same question and led to the answer in this case: “When is a debt said to be liquidated . . . ? [W]henever the amount due is agreed upon by the parties, or fixed by operation of law.” Here, the debt became liquidated to the extent of the $15,000 when defendants failed to deny the allegation in this ex contractu case within the time provided for an answer and failed to open the default. Thereafter the allegation became conclusively admitted and there would be nothing for a jury to find as fact, insofar as that amount is concerned. The amount of $15,000 became liquidated by the absence of a denial that at least that amount was owed. Of course, the “excess” did not ever become certain; but no judgment was granted on it. The amount of $15,000 was established by operation of law. It is only where the contract-based claim involves unliquidated damages that plaintiff is required to introduce evidence in a default case. OCGA § 9-11-55 (a); Griffin v. First Professional School, 149 Ga. App. 22 (253 SE2d 422) (1979). Of course, if it were a tort case, the damages would have to be established before a fact finder because default is not taken in law as admitting the amount due in an ex delicto action, OCGA § 9-11-55 (a), and there is no underlying agreement of the parties (contract) by which the amount is ascertained.
Decided January 7, 1986. Mark L. Golder, for appellant. Furman Smith, Jr., for appellee.