Dameron v. Liberty Nat. Life Ins. Co.

• Decision Date: 18 June 1937
• Docket Number: 26276.
• Citation: 192 S.E. 446,56 Ga.App. 257
• Parties: DAMERON v. LIBERTY NAT. LIFE INS. CO.
• Court: Georgia Court of Appeals

192 S.E. 446

56 Ga.App. 257

DAMERON v. LIBERTY NAT. LIFE INS. CO.

No. 26276.

Court of Appeals of Georgia, First Division

June 18, 1937

Rehearing Denied July 28, 1937.

On Motion for Rehearing.

Syllabus by the Court.

An oral contract for a period of five years, whereby the plaintiff was employed as an insurance agent of the defendant, to solicit policies of insurance and collect premiums thereon was not taken without the operation of the statute of frauds merely because the person so employed entered on the performance of his part of the contract for a period of three or four months. Nor was such contract taken without the operation of the statute of frauds by allegations, in the action for the breach of such contract, that the person so employed (the plaintiff) purchased an automobile for a stated sum to use in his work and was compelled to sell the same at a loss after his discharge; it not appearing that the contract of employment required the plaintiff to purchase a car, or that it was in the contemplation of the parties and mutually agreed to by them.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by W. H. Dameron against the Liberty National Life Insurance Company. To review a judgment sustaining a demurrer and dismissing the petition, plaintiff brings error.

Affirmed.

J. C Bowden and J. Wightman Bowden, both of Atlanta, for plaintiff in error.

Bryan Middlebrooks & Carter and Yantis Mitchell, all of Atlanta for defendant in error.

GUERRY, Judge.

W. H. Dameron brought suit against Liberty National Life Insurance Company for the alleged breach of a contract of employment. The petition alleged that on February 1, 1932, plaintiff was employed by and began work for the defendant as an insurance agent for the purpose of issuing insurance policies to members of the general public, and to collect premiums thereon weekly; that this contract of employment was oral and was for a term of five years; that he worked for the defendant, under the contract, from the above date until May 20, 1932, at which time he was wrongfully discharged. The petition further alleged that during these months plaintiff fully complied with his part of the contract; that under the terms of the contract he earned about $15 in February, about $30 in March, about $45 in April, and up, to the time he was discharged, about $50 in May; and that plaintiff would have continued to earn $50 per month for the duration of the contract. The defendant demurred to the petition on the ground that it affirmatively appeared that the contract was one of employment not to be performed within a year and was therefore within the statute of frauds and unenforceable. Code § 20-401 (5). This demurrer was sustained with leave granted the plaintiff to amend his petition.

In an effort to take the contract set forth without the statute of frauds plaintiff filed two amendments to his petition. These amendments alleged substantially that in preparing to carry out his part of the contract with the defendant plaintiff purchased an automobile at a cost to him of about $250, which automobile he used in building up business for the defendant in the territory assigned to him; that during the time of his performance of the contract he operated the automobile at an expense of about 25 cents per day; that after his wrongful discharge he was unable to find employment and was compelled to and did sell the automobile for $100, thus causing a loss to him of $150 on the purchase price of the car. It was further alleged that in soliciting insurance policies, collecting premiums, and delivering policies, it was necessary for him to go into and over said territory daily, and in doing so it was necessary for him to have the use of an automobile in reaching the various parts of his territory. The demurrer was urged to the petition as amended and was sustained and the petition was dismissed. The only question to be considered is whether the purchase of the automobile as alleged operated as such "part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance" (Code, § 20-402 (3), for it is well settled that the fact that the person who has contracted to serve another under such a contract, enters on the performance of his contract does not take the case out of the statute. Bentley v. Smith, 3 Ga.App. 242, 59 S.E. 720; Lewis v. Southern Realty Investment Corporation, 42 Ga.App. 171, 155 S.E. 369.

On the question thus to be decided the judge in his order sustaining the demurrer aptly said: "The plaintiff alleged that he bought an automobile at a cost of a few hundred dollars which he used in soliciting business, but it does not appear that the alleged contract called for the purchase of a car. The car belonged to the plaintiff, and he has since sold it." "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." Bentley v. Smith, supra. In other words, the part performance which results in a loss to the employee and a benefit to the employer must have been the performance of something required by the terms of the contract. Barnett Line of Steamers v. Blackmar, 53 Ga. 98. Nowhere in the petition is it alleged that it was a part of the contract of employment that the plaintiff should purchase the car. The mere allegation that it was necessary for the plaintiff to purchase the automobile does not amount to an allegation that it was a part of the contract that he should do so, or was in contemplation of the parties to the contract and mutually agreed to by them. The trial judge did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

BROYLES, C.J., and MacINTYRE, J., concur.

On Motion for Rehearing.

GUERRY Judge.

Counsel for the plaintiff in error has filed a motion for rehearing in which he does not question the correctness of our ruling as far as it went, but points out that we overlooked certain other allegations of the petition which he contends takes the alleged parol contract of employment out of the operation of the statute of frauds. It is said that we did not consider whether or not it would be a fraud on the part of the defendant to allow it to retain the business accumulated for them by the plaintiff during the four months that he worked, and then to discharge him, as was alleged in the petition. We did not overlook this feature of the case, in fact, as we shall hereafter point out, we fully covered it by a general principle of law. We did not specifically deal with...