Ely v. Stratoflex, Inc.

CourtUnited States Court of Appeals (Georgia)
Citation208 S.E.2d 583,132 Ga.App. 569
Docket NumberNo. 2,No. 49459,49459,2
PartiesLewis C. ELY v. STRATOFLEX, INC., et al
Decision Date06 September 1974

Page 583

208 S.E.2d 583
132 Ga.App. 569
Lewis C. ELY
No. 49459.
Court of Appeals of Georgia, Division No. 2.
Sept. 6, 1974.

[132 Ga.App. 572] John D. Varnell, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, Eugene G. Partain, John D. Lowery, Atlanta, for appellees.

Syllabus Opinion by the Court.

[132 Ga.App. 569] EBERHARDT, Presiding Judge.

Lewis C. Ely left his job at Aeroquip Corporation to begin working for defendant Stratoflex, Inc. Ely testifies by deposition that he changed companies based on promises made by the president of Stratoflex that he would receive better pay and have 'a job for the rest of [132 Ga.App. 570] my working life.' In return Ely was to bring with him accounts he had accumulated at Aeroquip, and convert them to Stratoflex customers, as well as to acquire and handle new and existing accounts for Stratoflex. These terms were never incorporated into a written contract. After nearly three years of employment with Stratoflex, Ely was discharged because it 'could not afford to retain him any longer.'

In his complaint, Ely alleges that Stratoflex (1) breached its oral contract of employment by discharging him, and (2) fraudulently induced him into leaving Aeroquip for the purpose of acquiring accounts which he could switch from his former employer and once having acquired them, discharged him and that such was their intent from the outset. As a result of these acts Ely had suffered damage to his reputation. Stratoflex, after denying the allegations of Ely's complaint, moved for summary judgment, tendering in support depositions and affidavits.

Page 584

From an order granting the motion, Ely makes this appeal.

Ely enumerates as error that two genuine issues of material fact were presented by the pleadings, interrogatories and depositions of Ely: (1) whether part performance would take the employment contract out of the Statute of Frauds and (2) whether Stratoflex had a fraudulent intent when the promises were made to him. Held:

1. The term of Ely's employment was indefinite and therefore comes under the statutory rule that '(a)n indefinite hiring may be terminated at will by either party.' Code § 66-101; Lambert v. Georgia Power Co., 181 Ga. 624, 183 S.E. 814; Land v. Delta Air Lines, 130 Ga.App. 231, 203 S.E.2d 316; Elliott v. Delta Air Lines, Inc., 116 Ga.App. 36, 156 S.E.2d 656.

We do not reach appellant's contention that there had been such part performance of the oral contract as to take it out of the Statute of Frauds (as to which see Bentley v. Smith, 3 Ga.App. 242, 59 S.E. 720; Bagwell v. Milam, 9 Ga.App. 315, 71 S.E. 684; Lewis v. Southern Realty Investment Co., 42 Ga.App. 171(3), 155 S.E. 369; Morris v. Virginia-Carolina Chemical Co., 48 Ga.App. 702(3), 173 S.E. 486; Alexander-Seewald Co. v. Marett, 53 Ga.App. [132 Ga.App. 571] 314, 185 S.E. 589; Dameron v. Liberty National Life Ins. Co., 56 Ga.App. 257, 259, 192 S.E. 446), for even if we concluded that there had been part performance and that the Statute of Frauds does not apply, the contract is nevertheless for an indefinite hiring and for that reason is unenforceable. '(A) contract for permanent employment has been held to be a contract to continue indefinitely, and terminable at any time by either of the parties.' Bentley v. Smith, 3 Ga.App. 242, 247, 59 S.E. 720, 722, supra.

2. Ely's second contention is that he is entitled to recover against Stratoflex for fraud. In his petition, he alleges that the defendant's agent made certain promises to induce...

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