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Action for commissions. Fulton Civil Court. Before Judge Parker.
FELTON, Chief Judge.
The petition was properly dismissed on the grounds of multifariousness and misjoinder of parties and causes of action.
Georgia Realty & Insurance Company brought an action for real estate broker's commissions on the sale of certain real estate against the seller, defendant Chennault, Inc., and the purchaser, defendant Oakland Consolidated of Georgia, Inc. The petition, as finally amended, was brought in two counts, the first based upon express contract and the second upon quantum meruit. Count 1 alleges that the subject property was listed for sale by defendant Chennault, Inc. with the plaintiff, a licensed real estate broker; that the plaintiff procured defendant Oakland as a purchaser who was ready, able and willing to buy, and who actually offered to buy the property at the price of $2,000 per acre, which offer was accepted by defendant Chennault; that both defendants "orally agreed that the plaintiff would receive a sales commission upon said sale of 10% of the gross sales price, and that the defendants would be liable and responsible for the payment of said sales commission to the plaintiff." In addition to damages for failing to pay the commission, the plaintiff prays for expenses of litigation, alleging bad faith in "closing the sale without protecting the commission rights of the plaintiff." Count 2 incorporates, by reference, all of the allegations of count 1 (including the express contracts) with the exception of the last four paragraphs thereof, and seeks the same amount of money on the basis of quantum meruit, together with expenses of litigation. The court sustained a number of the defendants' renewed general and special demurrers, attacking the petition on the grounds of multifariousness and misjoinder of parties and causes of action, and dismissed the petition, from which judgment the plaintiff appeals.
Count 1 alleges a listing agreement between the plaintiff and defendant Chennault and an acceptance by Chennault of its co-defendant's offer, which stated a cause of action for the payment of the commission by defendant Chennault, both under the listing agreement and by virtue of the fact that Chennault was the seller, who is normally liable for the commission. National City Bank of Rome v. Graham, 105 Ga. App. 498, 507 (125 SE2d 223). It is further alleged that there was an agreement between the plaintiff was to negotiate with Chennault for the purchase of the property. Still another contract, the one whereby both defendants are alleged to have agreed to pay the plaintiff's commission, is alleged, but it is not alleged that the defendant jointly agreed to pay a single commission. Involved here, then, is more than one contract. All the parties to this action are not parties to each of said contracts, therefore there is a misjoinder of parties defendant. Since a verdict could have been based on any one of these contracts, the action is also multifarious. Count 1 was therefore properly dismissed on general demurrer after none of the amendments thereto cured the defects.
Count 2 incorporates by reference the allegations of count 1 as to the express contracts, then seeks a recovery on quantum meruit. "Where there is a special contract between the parties, a recovery on quantum meruit cannot be had." Thomas McDonald & Co. v. Elliott, 92 Ga. App. 409, 410 (88 SE2d 440); Kuniansky v. Williams, 101 Ga. App. 678, 680 (115 SE2d 204). See cases cited under catchwords, "Special contract," Code Ann. 3-107. It is true that a count based on an express contract may be joined with a count alleging facts to raise an implied promise to pay for services, i.e., quantum meruit, in one petition. Millican Electric Co. v. Fisher, 102 Ga. App. 309 (1) (116 SE2d 311); Brannen v. Lanier, 97 Ga. App. 30 (102 SE2d 96); Kraft v. Rowland & Rowland, 33 Ga. App. 806 (128 SE 812). In the present case, however, there was 'In averment of an express contract within the allegations of the count predicated on the theory of quantum meruit and the pleadings do not claim value for authorized services over and beyond an express contract. See Thomas McDonald & Co. v. Elliott, supra; Guaranty Mutual Life &c. Ins. Ce. v. Seals, 27 Ga. App. 378 (108 SE 477); Atlantic C. L. R. Co. v. Blalock, 8 Ga. App. 44 (68 SE 743); Millican Electric Co. v. Fisher, supra, p. 310. Count 2, therefore, did not state a cause of action for quantum meruit.
The court did not err in its judgment sustaining the general demurrers and dismissing the petition.
Judgment affirmed. Frankum and Pannell, JJ., concur.
Fine & Rolader, Joseph J. Fine, D. W. Rolader, Stephens D. Mitchell, for appellees.
Walter W. Calhoun, Sid Kresses, for appellant.
Friday May 22 20:10 EDT

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