Blackston v. Durant

In an action on an express contract, in the absence of an amendment declaring on quantum meruit, and in the absence of introduction, without objection, of evidence on the question of the right to recover on an implied promise, which was not pertinent to the action as brought, there can be no recovery on an implied promise.

DECIDED JUNE 5, 1941. This was a suit by Willie Durant against Walter Blackston in which the plaintiff alleged that the defendant was indebted to her in a named sum, which indebtedness "arose because plaintiff, at the request of the defendant with promise to pay the same on demand, paid ten notes totalling $326.90 which defendant owed to C. I. T. Corporation," etc. The plaintiff testified that she was the stepdaughter of the defendant, and at his oral request had paid the notes the defendant owed C. I. T. Corporation with her own funds. There was no evidence of an express promise to repay the money on demand. The defendant contended that the plaintiff paid the money out of his funds, and that he had not requested her to pay the obligations for him. The judge of the civil court of Fulton County rendered a judgment for the plaintiff, and the defendant excepted to the order overruling his motion for new trial.

The allegations of the petition must be construed to set forth an action on an express contract. They show that the request to pay the funds and the promise that they would be repaid on demand were made before the payments were made by her. This being true the allegations could not be construed to set forth an obligation based on an implied promise to pay, since an implied promise would arise after the payment of the funds by her and not before. See Seaboard Air-Line Ry. Co. v. Henderson Lumber Co.,28 Ga. App. 391 (111 S.E. 220). The petition is not ambiguous and there is no occasion for the invocation of the rule requiring that in the absence of demurrer it shall be construed to subserve the interests of the plaintiff.

Where an action is on an express contract no recovery may be had on a quantum meruit. Seaboard Air-Line Ry. Co. v.Henderson Lumber Co., supra; Graham v. Jones, 39 Ga. App. 610 (147 S.E. 902); Shropshire v. Heard, 27 Ga. App. 256 (107 S.E. 892); Fuller v. Fuller, 41 Ga. App. 24 (2) (152 S.E. 122); Terrell v. Harris, 42 Ga. App. 760 (157 S.E. 387); Walker v. O'Neal, 21 Ga. App. 563 (94 S.E. 835);City of Columbus v. Anglin, 120 Ga. 785 (48 S.E. 318). The evidence did not authorize the finding of the court. The judgment can not be sustained on the theory that evidence was introduced on the question of an implied obligation without objection, for the reason that the evidence introduced was admissible on the question of whether there was an express obligation, and the amount thereof, and the defendant could not have objected to the evidence so as to require an amendment to declare on quantum meruit.

The court erred in overruling the motion for new trial.

Judgment reversed. Sutton, J., concurs. Stephens, P. J.,dissents.