Morris v. Va.-carolina Chem. Corp.

• Decision Date: 03 March 1934
• Docket Number: No. 23089.,23089.
• Citation: 173 S.E. 486,48 Ga.App. 702
• Court: Georgia Court of Appeals
• Parties: MORRIS . v. VIRGINIA-CAROLINA CHEMICAL CORPORATION.

48 Ga.App. 702

173 S.E. 486

MORRIS .

v.VIRGINIA-CAROLINA CHEMICAL CORPORATION.

No. 23089.

Court of Appeals of Georgia, Division No. 2.

March 3, 1934.

Syllabus by Editorial Staff.

JENKINS, P. J., dissenting.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by J. H. Morris against the Virginia-Carolina Chemical Corporation. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

Lee, Congdon & Fulcher, of Augusta, for plaintiff in error.

Hamilton Phinizy, of Augusta, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, Judge.

1. A contract for services to begin at a future date, and to continue for a period of one year from that date, is a contract that "is not to be performed within one year from the making thereof, " as required by the statute of frauds. Civil Code (1910) § 3222 (5); Hud-gins v. State, 126 Ga. 639, 643, 55 S. E. 492; Williams v. Garrison, 21 Ga. App. 44, 93 S. E. 510. An oral contract of employment made in June, 1931, to commence in July, 1931, and to continue for one year from that date, is unenforceable under the statute of frauds unless taken out of the statute, as provided by law.

2. A performance of services under the contract for a part of the term is not such part performance as renders it a fraud upon the party performing for the employer to refuse to comply, by a discharge of that party before the expiration of the term. 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 Corp., 42 Ga. App. 171, 155 S. E. 369. This is true, notwithstanding the person performing the services, after he executed the contract, and began to render services under it, refused an offer of employment elsewhere.

3. Where the employee under the contract for services from July 1, 1931, for a year from that date, brings suit against the employer for damages for his discharge prior to the expiration of the term, the date of the expiration of the term is one of the essential elements of the contract. It follows, therefore, that a written memorandum, in a letter from the employer to the employee, after the execution of the contract, which states in substance only that it is necessary to make a reduction in "salaries effective November 1st, " and that the employee's "present salary at $3,000 per annum" is reduced to "$2760 per annum, " even if it is a sufficient compliance with the statute as evidencing in writing that the contract was for a year, is insufficient as a writing indicating the expiration of the term. F. & W. Grand, etc., Stores, Inc., v. Eiseman, 160 Ga. 321, 127 S. E. 872; North v. Mendel, 73 Ga. 400, 54 Am. Rep. 879; Tip pins v. Phillips, 123 Ga. 415, 51 S. E. 410; Massbll Realty Co. v. Hanbury, 165 Ga. 534, 141 S. E. 653; Williamson v. Morgan, 26 Ga. App. 713, 716, 106 S. E. 916; Klllarney Realty Co. v. Wimpey, 30 Ga. App. 390, 118 S. E. 581: Palmer v. Marquette Co., 32 Mich. 274. A statement contained in the defendant's plea which recited that it was agreed that the plaintiff's salary should be reduced from $250 to $230 per month was insufficient as a writing indicating the expiration of the term.

4. Since the plaintiff relies upon a specific contract of employment for one year from July 1, 1931, and does not rely upon any custom of the trade that contracts of this character are made for a period of one year, such custom cannot be read into the contract so as to supply any deficiency in the written memorandum to show the period of the term of the contract. Turner v. Lorillard Company, 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345.

[B] 5. Where the plaintiff alleged in the petition a contract which the statute of fraudsrequired to be in writing, and where, in the absence of an allegation that the contract was an oral one, it was presumably one in writing, and where a demurrer to the petition, upon the ground that it appeared from the petition that the contract was not in writing and therefore within the statute of frauds and unenforceable, was overruled, thus adjudicating that the petition in effect alleged a contract in writing, the allegations in the petition are not sustained by testimony to the effect that the contract was an oral one and was not taken out of the statute of frauds. There being no evidence that the contract was in writing, or that it was taken without the statute of frauds, the court properly granted a nonsuit.

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