Davis & Co v. Morgan

• Citation: 117 Ga. 504,43 S.E. 732
• Court: Supreme Court of Georgia
• Decision Date: 19 March 1903
• Parties: DAVIS & CO. v. MORGAN.

43 S.E. 732

117 Ga. 504

DAVIS & CO.

v.MORGAN.

Supreme Court of Georgia.

March 19, 1903.

CONTRACT OF EMPLOYMENT—ALTERATION-CONSIDERATION—ENFORCEMENT.

1. Where a contract of employment is made for one year at a stipulated salary per month, an agreement during the term to receive less or to pay more than the contract price is void, unless supported by some change in place, hours, character of employment, or other consideration.

2. Protection to person and property is the duty of the state, and in pursuance thereof laws are made to protect property and award damages for breach of contract, but courts cannot enforce promises binding on the conscience, except in those cases where some pecuniary damage flows from the breach, or where, in addi tion to the moral obligation, the promise is also supported by a legal consideration.

(Syllabus by the Court.)

Error from Superior Court, Mcintosh County; P. E. Seabrook, Judge.

Action by A. M. Morgan against C. H. Davis & Co. Judgment for plaintiff, and defendants bring error. Reversed.

Osborne & Lawrence, for plaintiffs in error.

Gignilliatt & Stubbs, for defendant in error.

LAMAR, J. Davis & Co. employed Morgan for one year at $40 per month. After the contract had been in force for some time, Morgan received an offer of $65 per month from a company in Florida, and mentioned the fact to Davis, saying that of course be would not go without consent Davis insists that he then said, if Morgan would stay out the balance of the term, and work satisfactorily, he would give him $120 at the end of the year. Morgan says that Davis stated, "I will add $10 a month from the time you began, and owe you $120 when your time is up." Davis & Co. discharged Morgan two or three weeks before the end of the term, because the latter had gone to Florida for several days without their consent. Morgan insists that he told Davis that he was going, and the latter made no objection. He claimed that he was discharged without proper cause, and brought suit for the extra compensation promised. The jury found a verdict in his favor, and, the court having refused to grant a new trial, Davis & Co. excepted.

If the promise contemplated that Davis & Co. were to pay Morgan $10 per month for that part of the year which had already passed, and as to which there had been a settlement, it was manifestly nudum pactum; for a past transaction, the obligation of which has been fully satisfied, will not sustain a new promise. Gay v. Mott, 43 Ga. 254. And the result is practically the same whether Morgan or Davis was correct in the statement of the conversation. Both proved a promise to give more than was due, and to pay extra for what one was already legally bound to perform. The employer, therefore, received no consideration for his promise to give the additional money at the end of the year. Morgan had agreed to work for 12 months at the price promised, and if during the term he had agreed to receive less, the employer would still have been liable to pay him the full $40 per month. On the other hand, the employer could not be forced to pay more than the contract price. He got no more services that he had already contracted to receive, and according to an almost unbroken line of decisions the agreement to give more than was due was a nudum pactum, and void, as having no considertion to support the promise. The case is something like that of Bush v. Rawlins, 89 Ga. 117, 14 S. E. 886, where the landlord agreed to givethe tenant certain property if he would pay his rent promptly; and it was held that such a promise was a gratuity, and void, as without consideration to support it. And see Tatum v. Morgan, 108 Ga. 336, 33 S. E. 940 (2); Civ. Code 1895, § 3735. It is also within the principle of Stilk v. Myrick, 2 Campbell, 317, where Lord Ellenborough held that an agreement to pay seamen extra for what they were bound by their articles to do was void. And so in Bartlett v. Wyman, 14 Johns. 260, a similar ruling was made in a case where a master agreed to give more wages if the seamen would not abandon the ship. See, also, Ayres v. C. R. I. Ry. Co., 52 Iowa. 478, 3 N. W. 522. There are cases holding that a new promise is binding where one of the parties to a contract refuses to perform, and, to save a loss, the innocent party agrees to pay more than the original contract price, if the actor will perform as originally agreed. Goebel v. Linn, 47 Mich. 489, 11 N. W. 284, 41 Am. Rep. 723. But even if that line of cases should not be disregarded as tending to encourage a breach of contract, they do not affect the rights of Morgan here, because he does not bring himself within their ruling. Had there been a rescission or formal cancellation (Vanderbilt v. Schreyer, 91 N. Y. 402) of the old contract by mutual...