Edwards-Warren Tire Co. v. Coble
| Citation | 102 Ga.App. 106,115 S.E.2d 852 |
| Decision Date | 23 June 1960 |
| Docket Number | No. 38253,No. 2,EDWARDS-WARREN,38253,2 |
| Parties | TIRE COMPANY, Inc. v. J. W. COBLE |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. The trial court did not err in overruling the general demurrer for reasons stated in the body of this opinion.
2. An action alleging a breach of a contract and alleging bad faithin the transaction out of which the cause of action arose authorizes a claim for expenses of litigation under the provisions of Code § 20-1404.
3. The trial court did not err in overruling the defendant's special demurrer directed at the exhibits attached to the plaintiff's petition for the reason stated in the opinion.
John W. Coble filed an action against Edwards-Warren Tire Co., Inc., in the Civil Court of Fulton County. Succinctly the petition alleged an employment contract between the plaintiff and the defendant. A copy of the extensive contract was attached as an exhibit to the petition which set out in detail the method as to how the plaintiff's compensation would be calculated. The plaintiff alleged that on July 31, 1959, he was entitled to $3,221.04, which was due and payable on October 1, 1959. On August 31, 1959, the defendant, through its attorney and secretary, by a letter, terminated the employment contract. On October 1, 1959, the plaintiff met with the attorney for the defendant and the defendant's vice president to receive payment due under the contract. During the course of the conference prior to the delivery of the check in the amount of $3,221.04, the defendant's attorney told the plaintiff that the check represented the net amount due the plaintiff for commissions owed him by the defendant corporation through July 31, 1959. Thereupon, the defendant's attorney handed the plaintiff the check, and the plaintiff agreed that the amount stated was correct. The plaintiff noticed an endorsement on the check but did not read it thoroughly. The plaintiff asked the defendant's attorney whether or not the endorsement meant that the defendant was paying the plaintiff's commissions due through July 31, 1959, and did not include commissions which would be due for August and September, 1959. The defendant's attorney replied in the affirmative. Neither of the defendant's officers mentioned that the endorsement was intended to release all claims of whatever kind and character through July 31, 1959, which the plaintiff might have against the defendant corporation. The plaintiff consulted his attorney who advised him that the endorsement would release the defendant corporation from any and all claims of whatever kind and character the plaintiff might have against the defendant through July 31, 1959. The endorsement was as follows: 'The undersigned does hereby acknowledge full, final and complete settlement, satisfaction and payment in full of any and all claims of whatever kind or character I may have against the Edwards-Warren Tire Co.; and does hereby fully and finally release and discharge the Edwards-Warren Tire Co. from any and all liability or obligations to the undersigned to and through the 31st day of July, 1959.'
The petition further alleged that the plaintiff's attorney drafted a release in accordance with the intention of the parties to show a release for the commissions paid through July 31, 1959, only. This proposed release was as follows: 'The acceptance of this check by the undersigned endorser acknowledges full, final and complete payment by Edwards-Warren Tire Company of all sums due the undersigned endorser under the contract of August 21, 1958, through July 31, 1959, for one percent (1%) commission due under the terms of said contract, each of the parties understanding that the only additional sum due under said contract is the one percent (1%) commission accrued to the endorser under the terms of said contract for the period from August 1, 1959, through September 30, 1959.' The plaintiff's drafted release to be placed upon the check was submitted to the defendant's attorney as an acceptable release to the plaintiff. The defendant's attorney refused such proposed endorsement and stated that the $3,221.04 was due plaintiff, but that, nevertheless, the defendant was demanding and insisting on an endorsement originally placed on the check when it was delivered to the plaintiff. The plaintiff thereupon informed the defendant's attorney that the release demanded by the defendant was unacceptable to him and that he would not sign such a release.
Later the plaintiff's attorney telephoned the defendant's attorney and insisted that the defendant pay the $3,221.04, without the necessity of the plaintiff having to sign a complete and final release of any and all claims of whatever kind and character the plaintiff might have against the defendant through July 31, 1959. The defendant's attorney stated that the plaintiff would have to sue the company to obtain the sum unless the plaintiff signed the complete and final release as originally placed on the check, and if the plaintiff did sue the defendant corporation, the corporation would pay the sum since there was no dispute that the $3,221.04 was due to the plaintiff for the net commissions through July 31, 1959. On the same date the plaintiff returned the check to the defendant by letter, as the plaintiff refused to accept the check as presented by the defendant corporation.
The petition alleges that on November 3, 1959, the defendant, through its attorney, wrote a letter to the plaintiff's attorney setting up a counter-claim against the plaintiff with respect to two separate transactions: (1) A counter-claim of approximately $765 for putting back into shape, physically and mechanically, a truck which was placed by the plaintiff for the use of a customer of the defendant. (2) A claim for reimbursement of approximately 9 days services, which the defendant claims were not rendered by the plaintiff due to absence of the plaintiff on various personal business. The petition alleged that the counterclaims were false and were known to be false by the defendant's officers and made for the purpose of creating an apparent justiciable controversy between the plaintiff and the defendant in order that the defendant could avoid the expenses of litigation in the event of a suit. The defendant, through its attorney, has, since October 1, 1959, demanded that the plaintiff, as a condition precedent to receiving the $3,221.04, sign a full, final, and complete release and discharge of all claims he may have of whatever kind and character against the defendant. The plaintiff has refused to accept such terms or conditions, and has refused to execute such release, because the plaintiff is under no legal obligation or duty to do so.
The defendant has willfully, maliciously, and in bad faith broken the employment contract in failing to pay to the plaintiff the amount due him under the terms of the contract, and that the plaintiff has been required to employ an attorney to draft, file, and handle this suit in order to collect the $3,221.04 from the defendant. The defendant has acted in bad faith, has put the plaintiff to unnecessary trouble and expense and is stubbornly litigious.
The petition prays for judgment against the defendant in the amount of $3,221.04, plus interest, and the sum of $1,000 as expenses of litigation.
To this petition defendant filed general and special demurrers. The defendant later withdrew two of its special demurrers and on hearing the trial court overruled the general demurrer, and all but one of the defendant's special demurrers. To the overruling of the demurrers the defendant excepted and filed an appeal.
Slaton, Robertson, Brookins & Tidwell, Atlanta, for plaintiff in error.
Houston White, Beryl H. Weiner, Atlanta, for defendant in error.
1. The plaintiff in error insists on the general demurrer, the special demurrers with reference to the expenses of litigation, and the special demurrers to the exhibits attached to the petition. As there is no general insistence on the other demurrers, the court will treat them as abandoned.
The defendant assigns error on the court's overruling of the general demurrer. It is the defendant's contention that the plaintiff could have obtained the amount sued for simply by endorsing the defendant's check and cashing it.
Under the contract the plaintiff was to be compensated for his services. This was obviously the consideration to the plaintiff to work. Upon his performance and at the appropriate time specified in the contract, the plaintiff was entitled to payment in legal tender. In Heath v. Miller, 205 Ga. 699, 54 S.E.2d 432, it was held that under the provisions of Code § 20-1105, the only proper conditions attached to a valid tender are either a receipt in full or a surrender of the obligation, and such tender cannot be predicated on a condition unauthorized by law. The release attached in this case as a condition to be accepted prior to cashing the check was not only a receipt in full for the amount of the check, but also contained a release of all claims, including other claims than that under consideration. Accordingly, the tender was invalid because it was conditioned on an improper demand. The plaintiff did not refuse the check because it was not legal tender, but refused it because it required an improper condition precedent to receiving the proceeds of the check.
The argument of the defendant overlooks the fact that the petition prays for actual damages in the amount of $3,221.04, which was alleged to be the amount due the plaintiff for the performance of the contract. The failure of the defendant to pay the consideration was alleged to be the breach of the contract, and the amount owing was the actual damages. The trial court did not err in overruling the general demurrer.
2. The major question is whether or not the plaintiff has alleged sufficient facts to...
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