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ATLANTA REALTY COMPANY, INC. v. PIASSICK et al.
41742.
FELTON, Chief Judge.
Action on contract. Fulton Civil Court. Before Judge Webb.
1. Where a case as laid in an action as amended is not proved, there can be no recovery for the plaintiff. Code Ann. 81-116, catchwords "Case as laid."
2. Atlanta Realty Company, Inc., sued two individual defendants to recover damages for the breach of an alleged express agreement by them to pay the plaintiff $3,000 if it procured a purchaser for them who was ready, able and willing to purchase a grocery business owned by the defendants as individuals, the petition alleging that the plaintiff had performed its undertaking to procure such a purchaser. There was a conflict in the evidence as to whether the alleged contract was entered into, but assuming that it was, the evidence demanded a verdict for the defendants because it showed that after the tine of the alleged contract the defendants incorporated the grocery business and one of the defendants sold his half of the stock in the corporation to the purchaser allegedly procured by the plaintiff. The cause of action is joint and the evidence fails to show a performance of the contract by the plaintiff in that the entire grocery business was not sold and no prospective purchaser offered to buy it on the terms made by the defendants. There being no evidence to authorize a recovery by the plaintiff on the joint cause of action against both defendants, the court, trying the case without the intervention of a jury, correctly found for the defendants.
Parks & Eisenberg, David S. Eisenberg, for appellees.
Gilbert, Patton & Carter, Fred A. Gilbert, for appellant.
ARGUED FEBRUARY 7, 1966 -- DECIDED MARCH 2, 1966.
Friday May 22 19:53 EDT


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