Avery, Shanks & Waltman, Inc. v. Giordano-Kirby Ins. Agency, Inc., GIORDANO-KIRBY

• Decision Date: 14 October 1981
• Docket Number: GIORDANO-KIRBY,No. 52813,52813
• Parties: AVERY, SHANKS & WALTMAN, INC. v.INSURANCE AGENCY, INC.
• Court: Mississippi Supreme Court

Page 1036

404 So.2d 1036

AVERY, SHANKS & WALTMAN, INC. v. GIORDANO-KIRBY INSURANCE AGENCY, INC.

No. 52813.

Supreme Court of Mississippi.

Oct. 14, 1981.

Barnett, Alagia & Pyle, William A. Pyle, Jackson, for appellant.

Rainer & Toney, John B. Toney, Brandon, for appellee.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

SMITH, Presiding Justice, for the Court:

This is an appeal from a decree of the Chancery Court of Rankin County rendered in a suit by Avery, Shanks and Waltman, a corporation, against Giordano-Kirby Insurance Agency, a corporation. ASW's complaint charged a breach by Giordano-Kirby of an oral contract allegedly made with ASW and sought damages on account thereof.

The provisions of the alleged contract of October 17, 1978, is summarized as follows: ASW, a corporation, transferred all of its assets, accounts and corporate stock to Giordano-Kirby, all of the ASW corporate stock having been owned by two individuals, Douglas W. Shanks and Larry Waltman. The consideration therefor was the payment by Giordano-Kirby to ASW of certain commissions and the employment of the said two individuals by Giordano-Kirby as agents in its said insurance business. The contract provided that, in the event the said employment of the two individuals should be involuntarily terminated prior to October 31, 1983, Giordano-Kirby would immediately pay to ASW 21/2 times the "annualized commissions" on the accounts which had been transferred to it under the contract by ASW, the value of the accounts which had been so transferred alleged to be $80,000. It was alleged in the complaint that employment of the two individuals was involuntarily terminated by Giordano-Kirby on July 29, 1979, and that thereupon said 21/2 times the annualized commissions became due ASW as alternative consideration for the transfer of its assets but that Giordano-Kirby refuses to pay it. Other allegations in the bill seek recovery on the basis of unjust enrichment of Giordano-Kirby, saying, in effect that Giordano-Kirby has received its property without compensation therefor.

The bill of complaint was filed on August 14, 1980, less than three years before the cause of action arose, but more than one year after it arose. A special demurrer was filed to the complaint by Giordano-Kirby, setting up the bar of the statute of limitations dealing with oral contracts of employment as set forth in Mississippi Code Annotated section 15-1-29 (Supp. 1981):

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or...