73 F.2d 94 (5th Cir. 1934), 7360, Marston v. Downing Co., Inc.

Docket Nº:7360.
Citation:73 F.2d 94
Party Name:MARSTON v. DOWNING CO., Inc.
Case Date:October 23, 1934
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 94

73 F.2d 94 (5th Cir. 1934)




No. 7360.

United States Court of Appeals, Fifth Circuit.

October 23, 1934

Page 95

Francis M. Oliver, of Savannah, Ga., for appellant.

Millard Reese and E. Way Highsmith, both of Brunswick, Ga., for appellee.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

A. B. Marston sued the Downing Company for a breach of contract, and a general demurrer was sustained mainly by reason of the Statute of Frauds (Civ. Code Ga. 1910, Sec. 3222). The petition stated the contract thus: 'On or about the 6th day of November, 1928, your petitioner was employed by the Downing Co. Inc., through Mr. W. B. Gillican, its president and controlling stockholder, to take charge of and operate the grocery, dry-goods, cooper shop and Tifton Branch departments of the Downing Co., Inc., for the years 1929 and 1930 upon the basis of a cash salary of $8500.00 per year and in addition thereto a commission of 5% of the net profits made by your petitioner in the operation of said departments of the Downing Co., Inc., in the years 1929 and 1930 respectively. An amendment added that there was an oral confirmation of the contract on November 6, 1928, but that the original contract was made with Gillican on the 20th of August preceding, and was then confirmed in writing by Vizard, a vice president of the company, through a letter sent to petitioner with copy to Gillican, which letter was quoted in part as follows: 'My understanding of the arrangement made between Mr. Gillican and yourself covering your moving to Brunswick and taking charge of the merchandise end of Downing Co. Inc., is that you are to be paid a salary of $8500.00 per year and further are to be paid a commission on net profits of the merchandise end of the Downing business agreeable to Mr. Gillican and yourself. ' No reply to the letter is alleged. The petition further sets up that the petitioner closed out his former business and moved from New Orleans to Brunswick, Ga., and performed the stipulated services; that inventories to ascertain profits were made at the end of each year participated in by Gillican on which net profits were ascertained of $102,079.12 for 1929 and $40,376.63 for 1930, petitioner's share being 5 per cent.; that he was paid his salary, but at Gillican's request payment of the commissions was deferred because of the condition of the company's business, and the...

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