American Standard, Inc. v. Jessee, 57777

• Decision Date: 12 July 1979
• Docket Number: No. 57777,57777
• Citation: 258 S.E.2d 240,150 Ga.App. 663
• Parties: AMERICAN STANDARD, INC., et al. v. JESSEE.
• Court: Georgia Court of Appeals

Page 240

258 S.E.2d 240

150 Ga.App. 663

AMERICAN STANDARD, INC., et al. v. JESSEE.

No. 57777.

Court of Appeals of Georgia.

Argued May 7, 1979.

Decided June 26, 1979.

Rehearing Denied July 12, 1979.

Parker & Ferguson, John Tye Ferguson, Atlanta, for appellants.

N. William Pettys, J., Acworth, for appellee.

CARLEY, Judge.

Jessee, plaintiff below, was terminated from his employment with the corporate defendant, American Standard. He instituted suit, the allegations being that his termination was without cause and resulted from a malicious conspiracy on the part of co-defendants Stankis and Swanson. The defendants answered and, after discovery, moved for summary judgment. Jessee filed no specific response to this motion; he did, however, file a verified amendment to his complaint. This amendment alleged, inter alia, that he had a lifetime employment contract or that, if he did not have such a contract, he had been defrauded by the defendants. The motion for summary judgment was heard and denied as to all defendants. The order denying the motion was, however, certified by the trial court for immediate review and this court granted defendants' application for interlocutory appeal. Upon consideration of the issues raised on this appeal, we affirm as to Stankis and Swanson but reverse the trial court's order refusing to grant summary judgment in favor of American Standard.

1. Plaintiff's complaint is replete with references to "his tenured position" with American Standard, "permanent job . . . until his death, disability or retirement," "permanent, full-time salaried employee . . . for his life," "tenured employee status," "lifetime employment contract." The law is well settled that "In the absence of a controlling contract, 'permanent employment,' 'employment for life,' 'employment until retirement' is employment for an indefinite period, terminable at the will of either party, which gives rise to no cause of action against the employer for alleged wrongful termination. (Cit.)" Ga. Power Co. v. Busbin, 242 Ga. 612, 613, 250 S.E.2d 442, 444 (1978) (Emphasis supplied.) Such a contract must be in writing. "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz: Any agreement (except contracts with overseers) that is not to be performed within one year from the making thereof." Code Ann. § 20-401(5).

The defendants' affidavit, submitted in support of the motion for summary judgment, stated that the plaintiff was hired pursuant to an oral and not a written contract. Plaintiff concedes that there is no one written document embodying all of the terms of his contract of employment but argues that various documents, taken as a whole, set forth such a "controlling contract." Under certain circumstances a signed series of writings internally connected one with another which shows or admits an agreement coextensive with the stipulations of the alleged contract will take the promise out of the Statute of Frauds, as against the party so signing. Capital City Brick Co. v. Atlanta Ice etc., Co., 5 Ga.App. 436(1a), 63 S.E. 562 (1909). See also Freeman v. Baker, 147 Ga.App. 168, 248 S.E.2d 298 (1978). "The writing or memorandum of the contract, to meet the requirements of the statute of frauds, must be complete in itself with nothing left in parol. (Cit.) It must show all the terms of the contract, the parties, and their assent thereto, in addition to showing the fact that there was a contract between the parties. (Cits.)" Cofer v. Wofford Oil Co., 85 Ga.App. 444, 449, 69 S.E.2d 674, 678 (1952). The "documents" referred to by plaintiff are, however, merely in-house corporate papers which establish plaintiff's Status as a "permanent full-time" employee (as opposed to a "temporary full-time employee) and a "bona fide Executive" employee with certain benefits which result from that status; they do not establish the period of time plaintiff is to retain this status or any other status with the employer. Where an employee brings suit against the employer for damages for his discharge prior to the expiration of the term, in the instant case prior to "death, disability or retirement," the date of the expiration of the term is one of the essential elements of the contract. Plaintiff's "documents" do not supply this contractual element. Morris v. Virginia-Carolina Chemical Corp., 48 Ga.App. 702(3), 173 S.E. 486 (1934). In other words, plaintiff's allegations and his "documents" do not establish a controlling Contract for lifetime employment. See generally Land v. Delta Air Lines, 130 Ga.App. 231, 203 S.E.2d 316 (1973).

Plaintiff alleges further that various actions taken by him were in part performance of his "lifetime" contract of employment and that the Statute of Frauds does not apply. This argument has been rejected, "for even if we concluded that there had been part performance and that the Statute of Frauds does not apply, the contract is nevertheless for an indefinite hiring and for that reason is unenforceable." Ely v. Stratoflex, 132 Ga.App. 569, 571, 208 S.E.2d 583, 584 (1974).

Plaintiff urges in the alternative that a year-to-year contract of employment was created. However, when asked whether he had signed a contract when he became a foreman, plaintiff replied, "Not to my knowledge. I don't recall." He relies upon Code Ann. § 66-101: "That wages are payable at a stipulated period raises the presumption that the hiring is for such period." In support of this argument he directs us to "documents" which refer to his "annual" salary. It is clear, however, that these documents do not stipulate the Periods when these annual wages are payable to him but merely establish the Total amount of his salary during a twelve-month period. Thus, there is no presumption under Code Ann. § 66-101 that the plaintiff was hired on a yearly basis. Furthermore, even if this series of documents by which the calculation of plaintiff's salary was changed from an hourly to an annual basis could be construed as a contract for employment for a period of twelve months, a year-to-year contract automatically renewable on the anniversary date would not result. See generally Odom v. Bush, 125 Ga. 184(1, 2), 53 S.E. 1013 (1906). See also, Runyan v. Economics Laboratory, Inc., 147 Ga.App. 53, 54(1), 248 S.E.2d 44 (1978).

It is thus clear that plaintiff's "contract" of employment was for an indefinite period, terminable at the will of either party and that there is no cause of action for an alleged wrongful termination of his "lifetime" contract. Summary judgment should have been granted in favor of American Standard as to this theory of recovery.

2. Nor does plaintiff's allegation that if he did not have a lifetime employment contract, he was "defrauded," state a claim for relief. It is well settled that "(a)lthough fraud can be predicated on a misrepresentation as to a future event where the defendant knows the future event will not take place . . . fraud cannot be predicated on a promise which is unenforceable at the time it is made." Beasley v. Ponder, 143 Ga.App. 810, 240 S.E.2d 111 (1977). And this is controlling in the instant case "because the promises (of lifetime employment) upon which the promisee relies for establishing fraud were unenforceable even absent any fraud at the time of their utterance. The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable." Ely v. Stratoflex, 132 Ga.App. at 572, 208 S.E.2d at 585, supra.

3. Even though a person's employment contract is at will, he has a valuable contract right which may not be lawfully interfered with by a third person. Ott v. Gandy, 66 Ga.App. 684(1), 19 S.E.2d 180 (1942). A party with no authority to discharge an employee at will, being activated by an unlawful scheme or purpose to injure and damage him, may not maliciously and unlawfully persuade...