Epps Air Service, Inc. v. Lampkin, 46856
| Citation | 125 Ga.App. 779,189 S.E.2d 127 |
| Decision Date | 06 March 1972 |
| Docket Number | No. 1,No. 46856,46856,1 |
| Parties | EPPS AIR SERVICE, INC. v. Richard L. LAMPKIN |
| Court | Georgia Court of Appeals |
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Sam F. Lowe, Jr., J. Arthur Mozley, Atlanta, for appellant.
Webb, Parker, Young & Ferguson, Paul Webb, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
Epps Air Service, Inc., sued Richard L. Lampkin for $191.88 on open account. Lampkin admitted the indebtedness, but filed his counterclaim, as amended, seeking a $13,600 judgment arising out of the purchase by the plaintiff from the defendant of his aviation business for $50,000 whereby he was to be employed by the plaintiff at the rate of $1,000 per month 'so long as there was any sum unpaid and owing to the defendant under the terms of the agreement' of purchase. His employment under the contract could be terminated only for 'justifiable cause.' He contends his employment was illegally terminated before he was paid in full, and the plaintiff owes him for both salary and unpaid balance on the contract.
The case came on for trial before the court without the intervention of a jury at which time judgment was rendered for plaintiff against the defendant on the open account for the sum of $191.88 plus interest as provided by law and for judgment against the plaintiff in favor of the defendant on his counterclaim for the sum of $13,404, plus interest accrued to date of $1,320. Epps appeals from the judgment on the counterclaim. Error is enumerated as to the final judgment and as to plaintiff's objection to defendant's second amendment to the counterclaim, as well as evidence admitted and not allowed in regard thereto. Held:
1. The court was authorized to find from the evidence that the defendant under his counterclaim, was entitled to employment under his contract until the promissory note, given in lieu of the proceeds derived from net profit applied against the indebtedness as found in the contract, was paid in full, subject only to the right of discharge for justifiable cause. A promissory note given for an obligation already incurred is not payment until it is, itself, paid; absent an express agreement or compelling circumstances clearly indicating an intention to accept the note in payment. Code § 20-1004; Farmers & Merchants Bank v. Rogers, 55 Ga.App. 38, 189 S.E. 274; Cohen's Department Stores, Inc. v. Siegel, 60 Ga.App. 79(1), 2 S.E.2d 762; Alexander-Seewald Co. v. Questa, 121 Ga.App. 611(1), 175 S.E.2d 92. The evidence did not demand a finding that the note was an accord and satisfaction for the entire contract (Code §§ 20-1201, 20-1203, 20-1205). The parties also executed another instrument when the defendant voluntarily took a leave of absence for two months in which the parties mutually agreed 'that this leave of absence does not alter or relieve either party of their respective obligations under the original contract.' This instrument is dated June 9, 1969, signed by Epps on June 13, 1969; and by Lampkin on June 13, 1969. The note is not dated, but the payments thereunder of $500 were to commence on June 20, 1969. In addition, there was considerable other testimony no which the court could have based its findings.
2. The defendant was thereafter discharged by the plaintiff allegedly for justifiable causes; whereupon the defendant filed a claim for job insurance with the State Department of Labor, Employment Security Agency, appealing the separation grounds, and an appeals referee made a determination after notice and hearing that his discharge was for the convenience of the plaintiff and not for justifiable cause. Plaintiff filed an administrative appeal, which was denied, but no appeal to the superior court was thereafter made; and the decision of the administrative agency as to defendant's cause of separation became...
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Bowen v. U.S.
...317-318, 307 A.2d 155, 160 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973); Epps Air Service v. Lampkin, 125 Ga.App. 779, 780-781, 189 S.E.2d 127, 129 (1972); Maquoketa Community Schl. Dist. v. George, 193 N.W.2d 519, 520-521 (Iowa 1972); Bd. of County Commrs. v. Ra......
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Georgia Power Co. v. Busbin
...judicata to relitigate these issues (see Epps Air Service, Inc. v. Lampkin, 229 Ga. 792, 795, 194 S.E.2d 437; Id. Epps Air Service, Inc. v. Lampkin, 125 Ga.App. 779, 189 S.E.2d 127, reversed), defendant "Moore's opposition to Busbin's (plaintiff) application (for unemployment compensation) ......
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Carpet Transport, Inc. v. TMS Ins. Agency, Inc.
...853, 855(1), 244 S.E.2d 925. See also American Assn. Cos. v. Vaughan, 213 Ga. 119(1), 120-121(6), 97 S.E.2d 144; Epps Air Svc. v. Lampkin, 125 Ga.App. 779(1), 189 S.E.2d 127 (revd. on other grounds, Id., 229 Ga. 792, 194 S.E.2d 437). Here, the burden of proof was with the defendant, as the ......
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Epps Air Service, Inc. v. Lampkin, 46856
...In Epps Air Service v. Lampkin, 229 Ga. 792, 194 S.E.2d 437, the Supreme Court of Georgia reversed the judgment of this court in 125 Ga.App. 779, 189 S.E.2d 127. Accordingly, the judgment of affirmance as previously made by this court is vacated and set aside and the opinion and judgment of......