Bentley v. Smith

• Decision Date: 09 December 1907
• Docket Number: 719.
• Citation: 59 S.E. 720,3 Ga.App. 242
• Parties: BENTLEY v. SMITH et al.
• Court: Georgia Court of Appeals

59 S.E. 720

3 Ga.App. 242

BENTLEY v. SMITH et al.

No. 719.

Court of Appeals of Georgia

December 9, 1907

Syllabus by the Court.

Under the evidence in this case, the plaintiff could not recover on the contract, because the testimony did not show that such a contract had been made for the employment of the plaintiff as would authorize a recovery thereupon. It appeared from the plaintiff's own testimony that no definite price was fixed for his services, and that there was no agreement between the parties as to the value of his services, coupled with a mutual understanding, or an obligation (either by acquiescence or otherwise) on the part of the defendants that such price should be paid by them.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Appeal and Error, § 2.]

It is not error to grant a nonsuit, where it appears from the evidence, without contradiction, that the contract of employment on which the plaintiff's right of action depended is for a period exceeding one year, and is not in writing, and there is no evidence which brings the case within the exception provided by Civ. Code 1895, § 2694.

[Ed Note.-For cases in point, see Cent. Dig. vol. 23, Frauds Statute of, § 66.]

The part performance which will take a contract out of the operation of the statute of frauds is such as is, within the terms of the agreement, an essential part of the contract, and as such is essential to the performance of the contract. The fact that the person who has contracted to serve another one year, to commence at a future day, enters upon the performance of his contract, does not take the case out of the statute. The servant may quit at any time and recover the value of his services on a quantum meruit, and the master may discharge the servant at any time without incurring liability therefor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 288.]

A contract for permanent employment continues indefinitely, and is terminable by either of the parties at any time.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 8.]

Error from City Court of Washington; S. H. Hardeman, Judge.

Action by Frank Bentley against O. H. Smith and others. From a judgment for defendants, plaintiff brings error. Affirmed.

J. M. Pitner and F. H. Colley, for plaintiff in error.

Wm. Wynne and W. A. Slaton, for defendants in error.

RUSSELL J.

Plaintiff in error brought a suit on a contract in the city court of Washington, alleging that on the 23d of November, 1906, the defendants in error employed him to work as a clerk in their store during the balance of 1906 and the year 1907 at $50 per month. The suit was for the unpaid balance claimed for the month of January, 1907. At the conclusion of the plaintiff's evidence the court granted a nonsuit and dismissed the case, and exception is taken to this judgment. According to the plaintiff's evidence he received a telegram from the defendants on the 16th of November, and in response to the telegram went to Washington, and on the 23d of November entered into an agreement to clerk for them. The telegram was as follows: "Frank Bentley, Woodville, Ga. Dry goods position open. $50 per month until January. Permanent position. Can you except at once? O. & H. Smith." According to plaintiff's own testimony, all that was agreed between the parties was that the defendants would give $50 per month until January 1, 1907, and that they would then increase his wages. He testified that the defendants did not say how much his wages would be increased, nor did he ask. According to the plaintiff's testimony he left it with the defendant Ollie Smith as to any raise in his salary. In addition to this, the plaintiff testified that the defendant Ollie Smith said that he wished to employ the plaintiff in a permanent job, that he replied that he could not move his family to Washington for anything less than a year and would not do so, that he moved from Woodville to Washington, and that it cost him $40 to move. The plaintiff did not testify that it was essential in any way to the contract that his family should be moved to Washington, nor that the defendants so understood it. He did testify that he moved from Woodville to Washington to comply with his trade with the defendants. The plaintiff was discharged on January 5, 1907, at which time the defendants paid him at the rate of $50 per month. The judgment of nonsuit was clearly right, for two reasons.

1. The plaintiff alleged in his petition that he had a definite contract for $50 per month. His evidence did not confirm or support that allegation. It failed to show that there had been any definite agreement as to the sum to be paid him after January 1st, and the suit was brought for the remainder of that month. The proof, so far from sustaining the allegations, failed to establish any contract at all for any stipulated sum per month. The amount to be paid, far from being actually agreed upon, was to be determined thereafter by Ollie Smith, one of the partners. The only testimony in the case (that of the plaintiff himself) clearly established that no price was fixed for his services after January 1st, and that there was no agreement, either expressed or tacit, on the part of the defendants, that he should be paid that sum. The court could well have sustained the motion to nonsuit upon this ground. The plaintiff failed to prove his case as laid.

2. But, even if the evidence for the plaintiff, in spite of the telegram which he introduced, can be construed as speaking a definite contract of employment, it was not error to grant the nonsuit, because the evidence showed that the contract of employment upon which the plaintiff's right of action depended was not to be performed within one year from the making thereof, and no evidence was adduced which would take it out of the statute of frauds. Civ. Code 1895,§ 2693.

3. It is insisted, however, by counsel for the plaintiff in error that there was such part performance as will except it from the operation of the statute of frauds. What is the part performance relied upon? It is found in the testimony of the plaintiff that he moved his family from Woodville to Washington in order to carry out his contract. We do not think that there was such part performance of the contract as would take the case out of the statute of frauds-such part performance as would render it a fraud on the part of the party refusing to comply. In Wood, on ...