Craig v. Baggs
| Decision Date | 04 April 1941 |
| Docket Number | 28737,28742. |
| Citation | 14 S.E.2d 156,64 Ga.App. 850 |
| Parties | CRAIG v. BAGGS. BAGGS v. CRAIG. |
| Court | Georgia Court of Appeals |
J. Z Craig instituted suit against L. D. Baggs, trading as L. D Baggs & Company, in which he alleged that the defendant was indebted to him upon a contract of employment under which he had performed services for the defendant. It appeared from the allegations of the petition that as a part of the terms of employment the defendant agreed to pay to the plaintiff who was an accountant, for his services as such twenty per cent. of the net income of the accounting business of
the defendant, which was to be determined by deducting from the gross income the necessary operating expenses of such business; that under the contract the defendant guaranteed compensation to the plaintiff for his services to the extent of $2,100 per year; that the defendant also agreed to reimburse the plaintiff for all expenses incurred by him while performing services for the defendant outside the City of Macon; that the defendant was to keep the books of the business; that the contract of employment was entered into after November 1, 1936, and was for a period of one year running from November 1, 1936, through October 31, 1937; that the contract was renewed on November 1, 1937, for a period of one year; that the contract was again renewed on November 1, 1938, for a one year period; that on April 30, 1939, the defendant "wrongfully" discharged the plaintiff; that the defendant refused upon request to render the plaintiff a statement showing the gross income, the necessary operating expenses and the net income of the business; that the defendant kept the books of the business and refused plaintiff access thereto, except the cash book for a portion of the period of time covered by the plaintiff's employment with the defendant; that the gross income of the defendant's business exceeded $46,928.85 for the period from November 1, 1936, to April 30, 1939; that the plaintiff not having access to the books of the defendant's business has no way of knowing what the operating expenses of the business were, but the plaintiff "believes and avers" that the operating expenses of the business for the entire period stated did not exceed $10,000; that the plaintiff incurred expenses while working out of Macon for the defendant in the sum of $712.29; that the plaintiff has withdrawn from the sum due him by the defendant the sum of $5,241.74; and that the defendant is therefore indebted to the plaintiff in the approximate sum of $3,000. The plaintiff prayed for an accounting to determine the gross income of the defendant's business for the period of his employment, the operating expenses thereof for such period, the net income therefor, and the twenty per cent. of the net income, and prayed for judgment against the defendant for $3,000, or such other sum as might be found to be due the plaintiff by defendant upon an accounting.
On June 23, 1939, the defendant demurred generally to the petition on the ground that it affirmatively appeared therefrom that the contract sued on was oral and incapable of being performed within the space of one year, and that such contract was therefore void under the law of Georgia, the law requiring that any-agreement that is not to be performed within one year from the making thereof must be written.
In his answer to the plaintiff's petition filed June 23, 1939, the defendant denied the existence of the contract for the period and as claimed by the plaintiff. The defendant admitted that a contract of employment was entered into between the defendant and the plaintiff, as alleged for one year, from November 1, 1936, through October 31, 1937, but denied that there was any renewal of this contract as claimed by the plaintiff. The defendant further alleged in his answer that after the expiration of the first year of employment, October 31, 1937, the plaintiff was employed by him from month to month at a monthly salary of $175. The defendant further denied that he was indebted to the plaintiff in the sum sued for, or any similar sum, but admitted that he was due the plaintiff $903.51, which sum he alleged that he was "ready, able and willing to pay".
On September 1, 1939, the plaintiff amended paragraph 16 of the petition and alleged that the contract sued on was renewed by mutual agreement of the parties the early part of November, 1937, to have effect from November 1, 1937, through October 31, 1938, in that at such time the plaintiff by written memorandum called to the attention of the defendant the fact that the 1936-1937 contract year had expired, that a settlement was in order for that year, and a determination whether the contract should run for another year was then proper, to which the defendant replied by assigning the plaintiff to further work and continued to assign the plaintiff to work during the remainder of 1937 and through October 31, 1938, which work the plaintiff performed. The plaintiff amended paragraph 7 of the petition and alleged in this amendment that the contract was renewed by mutual consent of the parties the early part of November, 1938, to have effect from November 1, 1938, through October 31, 1939, in that on November 5, 1938, the plaintiff by written memorandum called attention to the defendant the fact that the 1937-1938 contract year had expired, that a settlement was in order for the contract year and a determination of whether the contract was to run for another year was then proper, to which the defendant replied by assigning the plaintiff to further work and continued to assign the plaintiff to work, which work the plaintiff performed until he was discharged by the defendant.
On September 9, 1939, the defendant demurred specially to paragraphs 16 and 17 of the petition on the ground that it is nowhere alleged in either of such paragraphs how, where, when or in what manner the contract sued on was renewed, "nor is it alleged that said contract was continued in effect by mutual consent for another year; nor is it alleged whether any such renewal was in writing or oral". The court ordered the above special demurrer filed as of September 1, 1939.
On September 12, 1939, the court passed this order: "The general demurrer as renewed & the special grounds of demurrer all coming on to be heard and after argument thereon it is considered, ordered and adjudged that said general demurrer as renewed and said special grounds of demurrer are all overruled."
To this order and judgment the defendant, on September 14, 1939, filed exceptions pendente lite, which were allowed and certified.
On September 22, 1939, the case was referred by the court to an auditor to investigate and pass upon all questions of law and fact arising upon the pleadings and the evidence adduced on the hearing thereof (with the exception of the demurrers which had been theretofore filed in the case and passed upon by the trial judge).
On December 13, 1939, the plaintiff again amended the petition by striking from paragraph 14 of the petition the last clause thereof, reading "and be automatically renewed from year to year by the parties by mutual consent at the end of each contract year", so that the paragraph as amended should read: "That it was agreed that the terms of employment on said basis should be retroactive and begin as of November 1, 1936 and run for a period of one year, from November 1, 1936."
On January 13, 1940, the auditor made a report of his findings of law and fact in the case. The plaintiff excepted to that part of such report denominated finding of law No. 6, in which the auditor overruled objections to defendant's testimony interposed by the plaintiff that the defendant could not prove the gross amount of expense chargeable against the gross income of his business by testifying generally as to the amount of expenses incurred in the operation of his business. The plaintiff excepted to this finding as follows: "Plaintiff excepts to finding of law No. 6 for the reasons contained in plaintiff's objection to the testimony offered by plaintiff [defendant] at time it was offered; that is, that testimony as to the gross amount of expense is not admissible unless supported by competent evidence as to what the expenses were and that defendant actually incurred the expenses; that the expenses could only be shown by books of original entries as to individual items of expense, for what incurred and by whom incurred, with testimony of party incurring same that the entries were correct and that the items of expense so entered were incurred in connection with the business." This exception of law was filed January 29, 1940.
On February 12, 1940, upon motion of the plaintiff, the case was recommitted to the auditor for certain specified purposes, as therein stated. The auditor was instructed to find and show the gross income, reasonable operating expenses, and net earnings of defendant's business for the period of time involved, together with the sum to which the plaintiff was entitled, if any. The auditor was further instructed to disclose in his findings the basis...
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