Ind. Truck Corp. v. Glock

• Decision Date: 18 February 1933
• Docket Number: No. 22169.,22169.
• Citation: Ind. Truck Corp. v. Glock, 168 S.E. 124, 46 Ga.App. 519 (Ga. App. 1933)
• Parties: INDIANA TRUCK CORPORATION et al. v. GLOCK.
• Court: Georgia Court of Appeals

46 Ga.App. 519

168 S.E. 124

INDIANA TRUCK CORPORATION et al.

v.GLOCK.

No. 22169.

Court of Appeals of Georgia, Division No. 2

Feb. 18, 1933.

.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by C. S. Glock against the Indiana Truck Corporation and another. To review a judgment overruling their separate demurrers to the petition, the defendants bring error.

Judgment affirmed.

Glock brought suit against the Indiana Truck Corporation and Indiana Trucks, Inc. He alleged that each was indebted to him in the sum sued for by reason of the breach of a certain parol agreement; that on July 27, 102S, he entered into a written contract with the Indiana Truck Corporation of Georgia to take charge of its southern territory as sales agent; that under the contract he was to be paid $500 per month salary, receive a commission of 50 per cent, of the net earnings of the company in his territory, and gasoline and oil for his automobile when used in connection with the business of the company; that the Indiana Truck Corporation owned the entire capital stock of the Indiana Truck Corporation of Georgia; that O'Mara was the president and general agent of the Indiana Truck Corporation and the president and general agent of the Indiana Truck Corporation of Georgia; that as an inducement to plaintiff to enter into the written contract with the Indiana Truck Corporation of Georgia, O'Mara, acting in his official capacity as president and agent of the Indiana Truck Corporation and Indiana Truck Corporation of Georgia, orally agreed with plaintiff that if he would sign said written contract, he would receive from the Indiana Truck Corporation and the Indiana Truck Corporation of Georgia 1 per cent, of the sales in dollars of all motortrucks manufactured and sold by the Indiana Truck Corporation itself and by or through the Indiana Truck Corporation of Georgia in its southern territory, for so long a time as he should remain employed under the above-written contract; and that on January 1, 1929, the assets and business ofthe Indiana Truck Corporation of Georgia were taken over and merged into Indiana Trucks, Inc., and the latter assumed all contracts and liabilities of the Indiana Truck Corporation of Georgia.

The defendants filed separate demurrers to the petition, upon the ground that no cause of action was set out against them, in that the alleged oral agreement relied on by plaintiff is ineffective and unenforceable against them for the reason that it purports to vary the terms of a written instrument executed between the plaintiff and the Indiana Truck Corporation of Georgia at the same time and touching the same subject-matter; in that such oral agreement purports to vary or add to the terms of said written instrument; in that the parties who executed the oral agreement were either the same parties who executed the written agreement, or were in privity with them, or had such an interest therein that in contemplation of law they became parties thereto, and because all prior agreements by and between the parties were merged into the subsequent written contract thereby rendering inadmissible and unenforceable the oral agreement.

The court overruled these demurrers, and to this judgment the defendants except.

Paul S. Etheridge & Sons and Morgan Belser, all of Atlanta, for plaintiffs in error.

Hewlett & Dennis and Alexander Bush, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

It is true that a prior or contemporaneous parol agreement, which contradicts, varies, or...