
    Frierson v. Fincher et al.
    
    February 22, 1910.
    Action for breach of contract.' Before Judge Fite. Whitfield superior court.
    December 10, 1908.
    
      W. E. Mann, for plaintiff. Julian McCamy, for defendants.
   Atkinson, J.

The plaintiff and defendants entered into a parol contract, whereby the former undertook to render certain services in subdividing real estate and conducting an auction sale of lots for a commission stipulated to be five per cent, on the amount of such sales as might be made, and afterwards rendered services in subdividing the property and preparing to conduct auction sales under the contract; but the enterprise was abandoned by defendants and the property withdrawn before any sale of lots. Subsequently the plaintiff instituted suit for damages for a breach of the contract, without laying any claim upon a quantum'meruit for the value of his services above mentioned. Held:

1. It was erroneous to admit, over appropriate objection by the plaintiff, evidence as to the value of such services. It was also erroneous for the judge to instruct the jury that in the event they should find that no contract was made, nevertheless they would be authorized to find .for the plaintiff the value of the services rendered.

2. The plaintiff was entitled to have his case tried as laid in the pleadings; and the errors referred to in the preceding headnote, in view of the pleadings and all the evidence, were harmful and require the grant of a new trial.

3. Other errors complained of were not of such character as to require the grant of a new trial.

Judgment reversed.

All the Justices concur.  