Guy F. Atkinson Co. v. Fimian, s. 33507
| Decision Date | 04 December 1951 |
| Docket Number | 33508,Nos. 1,Nos. 33507,s. 33507,s. 1 |
| Citation | 85 Ga.App. 200,68 S.E.2d 236 |
| Court | Georgia Court of Appeals |
| Parties | GUY F. ATKINSON CO. et al. v. FIMIAN. GUY F. ATKINSON CO. et al. v. MUSGRAVE. . Division& 2 |
Syllabus by the Court.
1. The plea of the defendants asserting the provisions of the Statute of Frauds of the State of Washington was sufficient to withstand the plaintiff's demurrer thereto and the trial court erred in sustaining the demurrer and in striking the answer.
2. Documentary evidence about which there had been no oral testimony and which was not made to appear relevant was properly excluded.
3. Evidence as to a custom in the construction industry not to enter into contracts like the one asserted by the plaintiffs was improperly excluded under the facts of this case.
4. The trial court erred in excluding the answer of a witness for the defendants given upon cross-examination by counsel for the plaintiffs, which answer was direct and responsive to the question propounded.
5. The grounds of the motion for new trial which are abandoned in the argument of counsel before this court or which treat of matters not likely to recur on another trial of this case are not considered.
R. U. Fimian and W. P. Musgrave sued Guy F. Atkinson Company and J. A. Jones Construction Company for damages arising from an alleged breach of an oral contract of employment. The facts and circumstances of each case, while differing in particulars, were substantially the same, and the cases were tried together. The plaintiffs alleged substantially that they were employed in Georgia in their respective capacities earning certain sums of money monthly and were secure and permanently situated in their jobs. The defendants through their agent, one Davidson, sought to persuade the plaintiffs to accept employment with the defendants in the State of Washington, and, after repeated attempts, did persuade them orally to accept such employment. Relying upon the promises of the said Davidson made on behalf of the defendants that the employment would last three to five years, at a specified salary with certain other specified emoluments, the plaintiffs resigned their jobs in Georgia and moved themselves, their families and personal effects to the State of Washington and entered into the employment of the defendants. Thereafter, some six or seven months after they entered the defendants' employ, they were without cause discharged. They have ever since held themselves in readiness to perform their services for the defendants but the defendants have continuously, since the date of plaintiffs' discharge, failed and refused to employ the plaintiffs in any capacity whatsoever, thus causing the plaintiffs certain damages specifically set out. The defendants answered admitting the joint venture and the authority of Davidson to act for them in employing the plaintiffs but denied that the plaintiffs were employed for any specified period of time; and alleged by way of plea that the petition on its face alleged an oral contract of employment not to be performed within one year from the date of making, and that it was therefore within the purview of the Statute of Frauds. The plaintiffs demurred to this latter allegation of the answer on the ground that it was irrelevant, immaterial, and that it did not add anything to any defense otherwise stated in the answer 'in that the petition shows on its face that the oral contract is valid and enforceable under 20-402 of the Georgia Code.'
The trial court sustained this demurrer and struck that portion of the defendants' answer pleading the Statute of Frauds. This ruling was unexcepted to. Thereafter the defendants filed an amendment to their answer adding paragraph 21 as follows: It was alleged that the said statute was of full force and effect at the time the alleged contract was entered into, and at the time the acts performed by plaintiff and defendants were performed, and as construed by the highest court of the State of Washington such statute is applicable in each and every instance without regard to performance or part performance, and same constitutes a full and complete bar to any right of recovery by plaintiff herein.
To the answer as thus amended the plaintiffs demurrer on the grounds: (1) that the allegations of paragraph 21 were immaterial, irrelevant, and neither by themselves state a defense to plaintiff's petition nor add anything to any defense otherwise stated, (2) that the ruling of the court on the original demurrer to the answer striking the reference therein to the statute of frauds amounted to an adjudication that the plaintiff's cause of action was not subject to the statute of frauds, was a ruling of the court on the same subject matter, unexcepted to by the defendant, and thus the law of the case precluding the defendant from again pleading the statute of frauds, and (3) that the facts alleged in the amended paragraph were not sufficient to support the conclusion that the law of the State of Washington is applicable to the rights of the parties herein with respect to the statute of frauds. The trial court sustained the first and third grounds of demurrer and overruled the second ground and struck the amendment to the answer. To this order the defendant excepted pendente lite and preserved its exceptions before this court. The cases proceeded to trial and a verdict was returned and judgment entered for the plaintiff Fimian in the sum of $10,000 and a verdict and judgment for Musgrave in the sum of $8,000. The defendants made their motion for a new trial on the three general grounds and on eight special grounds. The trial court overruled the motion and the defendant excepted.
J. Ellis Mundy, U. S. Atty., F. Douglas King, H. A. Stephens, Jr., Assts. U. S. Atty., all of Atlanta, for plaintiffs in error.
Sutherland, Tuttle & Brennan, Atlanta, for defendants in error.
WORRILL, Judge (after stating the foregoing facts).
As we view the record in this case the trial court erred in sustaining the demurrers to the amendment adding paragraph 21 to the answer and in striking that portion of the answer, and therefore all that transpired thereafter was nugatory. The plaintiffs contend that the ruling of the trial court sustaining the first demurrer to the original answer, and thus holding that the case was not subject to the statute of frauds, being unexcepted to by the defendant, constituted the law of the case unreversed and estops the defendant to contend that the case is within the statute of frauds. In the state of the record we can not sustain this contention. The second demurrer specifically raised this very point in the second paragraph thereof, and the trial court expressly overruled this contention of the plaintiffs. The plaintiffs failed to except to that part of the judge's ruling which was adverse to them, and under the very theory they now seek to urge against the defendants they are barred from asserting that the adjudication of the trial court, in ruling on that part of the second demurrer was error, since no exception was taken thereto. Thus, no question is raised by the record as to whether the trial judge properly overruled ground (2) of the demurrer to paragraph 21 of the answer as amended, but the defendants have properly preserved their exceptions to so much of the order as sustained grounds (1) and (3) and struck paragraph 21. Ground (3) of the demurrer thus sustained was as follows: 'Plaintiff demurs generally and specially to paragraph 21 of the defendants' answer, as amended, upon the ground that the facts alleged therein are not sufficient to support the conclusion that the law of the State of Washington is applicable to the rights of the parties herein with respect to the Statute of Frauds or to state any defense to plaintiff's action.' This demurrer was filed by both plaintiffs. It brings us squarely to the question as to what law governs in cases like the one at bar. The defendants' answer alleged 'That all of the acts performed under the contract alleged by plaintiff were performed in the State of Washington, and all of the acts not performed but to be performed thereunder were to be performed solely in the State of Washington.'
While the cases on the subject are not without some apparent conflict, and while the general rule is that the lex loci contractus controls as to the validity, interpretation and effect of contracts, the courts of this state have evolved what seems to be a well defined exception to this rule. In Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson et al., 31 Ga. 210(3), it was held that where the plaintiffs resided in New York, the makers of certain notes in Georgia, and where the notes were endorsed by the defendants to an agent of the plaintiffs in Tennessee and where the contract was to be performed in Georgia, the contract, as to its nature, validity, construction and obligation was to be governed by the laws of Georgia, and not of Tennessee. In Dunn v. Welsh, 62 Ga. 241(2), it was held that 'Contracts made in Georgia, to be performed in New York, are...
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Guy F. Atkinson Co. v. Fimian, s. 33507
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