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BROWN v. JACKSON
The plaintiff-appellee instituted suit against the defendant-appellant on a contract for auction services. The case was heard before the trial judge without a jury. The appellant enumerates as error the overruling of her motion for directed verdict and the granting of judgment to the appellee.
DEEN, Presiding Judge.
The appellant's sole enumeration of error goes to the lack of evidence of the appellee's licensure. Code Ann. § 84-1404 (a) requires a plaintiff to allege and prove he was a duly licensed broker or salesman at the time the alleged cause of action arose. While prior to the adoption of the Civil Practice Act failure to allege was fatal, this is no longer the case. Maxwell v. Tucker, 118 Ga. App. 695, 698 ( 165 S.E.2d 459). Under Code Ann. § 81A-115 (b) issues not raised by the pleadings that are tried by express or implied consent are treated as if they had been so raised. Thus the issue becomes one of whether there was unobjected to evidence before the court of appellee's licensure to auction; the record here has been reviewed and there appears to be sufficient evidence of valid licensing to withstand the appellant's motion for directed verdict and to support the judgment for the appellee. "Because the appellant did not pose a `best evidence' objection when the appellee testified as to his licensure, he can not now complain that the evidence was not sufficient." Intercompany Services Corp. v. Kleeb, 140 Ga. App. 512 (1) ( 231 S.E.2d 505) and cit. Judgment affirmed. Webb and Marshall, JJ., concur.
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