Salvatori Corp. v. Rubin
| Decision Date | 07 July 1981 |
| Docket Number | No. 61629,61629 |
| Citation | 159 Ga.App. 369,283 S.E.2d 326 |
| Parties | SALVATORI CORPORATION et al. v. RUBIN. |
| Court | Georgia Court of Appeals |
Hugh W. Gilbert, Atlanta, James W. McKenzie, Jr., Athens, for appellants.
J. Kirk Quillian, Donald W. Janney, Atlanta, for appellee.
Appellee Rubin was employed by Swank; appellant Salvatori sought to employ Rubin, who ultimately left Swank to work for Salvatori. Salvatori and Rubin entered into an employment contract consisting of two documents. One pertained to compensation, business expenses and insurance, and the other covered additional compensation (pension benefits). The latter document was guaranteed by appellant Pacesetter Industries.
Prior to entering into the employment contract, Rubin obtained a calculation of the lump sum value of his accumulated pension benefits with Swank (about $51,000) from Swank's pension supervisor, Gately, and advised appellants of this amount. Appellants agreed to compensate Rubin for the loss of his pension rights, and an agreement covering such rights was executed on October 18, 1974. Subsequently, attorneys for appellants obtained directly from Gately the method of computation and amount of pension benefits Rubin would have been entitled to receive had he stayed with Swank. This figure was the same as that furnished earlier by Gately to Rubin. The amount was never disputed and appellants' attorneys communicated this figure to Rubin in May 1975. In June 1976 appellants had their own actuaries recompute the amount of Rubin's pension with Swank based on Salvatori's pension plan assumptions (using a different criteria), and calculated the sum to be $35,129.74. This information was not communicated to Rubin.
Rubin continued to work for Salvatori and in 1978 the parties executed a new agreement providing for Rubin's compensation, insurance coverage, vacation, severance pay and fringe benefits. A part of the prior agreement (the document dated October 18, 1974) pertaining to additional compensation (pension) was continued in effect at this time. Appellants admitted that at the time the new contract was executed the amount of the additional compensation based on the original figure of $51,000 was not in dispute.
Rubin contends that on August 4, 1978 his employment was terminated, but he was permitted to continue on the Salvatori payroll while he was looking for another job. Appellants contend that Rubin was advised that he should look for another job as the company could only afford a salary for one executive, not two, and that Rubin had resigned. Rubin continued working for appellants for two additional months, then returned immediately to Swank without any loss of work.
Rubin brought this suit against appellants seeking recovery of his lost pension benefits and severance pay. Appellants denied any indebtedness; however, in the alternative they pleaded that an insurance funding of the pension rights was substituted therefor and further, that the amount if due was to be computed under the Salvatori plan and would be $35,129.74. Indebtedness was also denied under the severance pay provision upon the theory that Rubin lost no pay through the change of employment and was not actually terminated. The jury found for Rubin in the amounts he sought for pension rights and severance pay.
Appellants contend the trial court erred (1) by denying their motion for judgment notwithstanding the verdict that the additional compensation amount (pension) be reduced to $35,129.74; (2) by submitting to the jury the question of whether or not appellants' breach of the additional compensation agreement was such a denial of liability as to authorize a lump sum award of damages where the contract provided for installment payments; (3) by admitting into evidence certain letters pertaining to the Swank pension plan figures, either as an admission or for estoppel purposes, when such admission was not authorized by the evidence; (4) and by giving an incomplete charge on termination of employment.
1. The essence of enumeration 1 is that the contract provision is clear and unambiguous and that the amount of pension rights should have been determined by the court, not by the jury. Paragraph 2 of the Additional Compensation Agreement provides:
"2. The designated sum as set forth in this Agreement shall mean a sum equal to the difference between (a) the amount (actuarially calculated) Rubin would have been entitled to receive (including his own contribution) as a lump sum under The Swank, Inc. Salaried Employees' and Salesmen's Pension Plan') (hereinafter called the 'Swank, Inc. Pension Plan') upon his termination of service with Swank, Inc. on 10/23/74 assuming for purposes of calculating this amount both that the Swank, Inc. Pension Plan had provided for 100% vesting upon termination of service after attaining the age of forty-five (45) years and that such vested benefit were (sic) immediately payable in a lump sum, and (b) the amount (actuarially calculated) that Rubin is entitled to receive (including his own contribution) under the Swank, Inc. Pension Plan upon his termination of service with Swank, Inc. on 10/23/74, assuming for purposes of calculating this amount that the benefit to which he is entitled under such plan were (sic) immediately payable in a lump sum."
Appellants contend that Paragraph 2 is modified by the definition of actuarial computation set forth in Paragraph 6 of the same agreement and this requires the actuarial computation to be computed under the Salvatori plan. Paragraph 6 provides:
The amount Rubin is entitled to, actuarially calculated under the Swank, Inc. program is $51,354.44 ($49,406.06 as reduced by the judge under stipulation), as compared with $35,129.74 if the actuarial calculation is made exclusively under the Salvatori plan. To the contrary, appellee contends that Paragraph 6 refers only to actuarial computations which are made for the period after October 23, 1974, the date Rubin left Swank to work for Salvatori; that is, only the period from the new employment until its termination. In interpreting this contractual provision the court admitted extrinsic evidence and submitted the issue as to what computation would be used to the jury. The jury responded by using the Swank, Inc. computation.
We agree with appellants that ordinarily the construction of a contract is a question of law for the court, Batson-Cook Co. v. Poteat, 147 Ga.App. 506, 249 S.E.2d 319 (1978); but where the terms of a written instrument are ambiguous, its meaning should be left to the jury. National Manufacture &c. Corp. v. Dekle, 48 Ga.App. 515, 521, 173 S.E.2d 408 (1933). Here, we have an agreement capable of conflicting interpretations and thus, it may be considered ambiguous. For the purpose of aiding in the interpretation of a contract, the surrounding circumstances may be proved. "Ambiguity in a contract may be defined 'as duplicity, indistinctness, an uncertainty of meaning or expression.' " Tarbutton v. Duggan, 45 Ga.App. 31(5), 163 S.E. 298 (1931). The existence or nonexistence of an ambiguity in a contract is a question of law for ...
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