Scott v. Southern Coach & Body Co.
| Decision Date | 30 March 1967 |
| Docket Number | 3 Div. 167 |
| Citation | 197 So.2d 775,280 Ala. 670 |
| Parties | Charles E. SCOTT v. SOUTHERN COACH AND BODY CO., Inc. |
| Court | Alabama Supreme Court |
Hugh M. Caffey, Jr., Brewton, and Edwin C. Page, Jr., Evergreen, for appellant.
B. E. Jones & R. L. Jones, Evergreen, for appellee.
Plaintiff appeals from a judgment for defendant in an action to recover commissions on gross sales made by defendant during the time plaintiff was employed by defendant as sales manager.
Plaintiff claims that defendant agreed to pay to plaintiff a commission of one-half of one per cent of gross sales made by defendant during the period of plaintiff's employment. Plaintiff contended that he had made the agreement with Albert who was president and general manager of defendant. However, Albert died before the trial and plaintiff experienced difficulty in attempting to prove the existence of the alleged employment contract.
The court concluded that there was no legal evidence sustaining such contract as claimed by plaintiff and gave the affirmative charge for defendant. The jury returned verdict for defendant and the court rendered judgment accordingly.
Assignment 1.
Plaintiff assigns for error the action of the court in overruling plaintiff's demurrer to plea 3.
The complaint contains four counts. Counts 1, 2, and 3 are common counts in code form on account and for work and labor done.
In Count 4, plaintiff claims of defendant $17,500.00 for breach of an agreement made May 18, 1958, whereby defendant promised to pay commissions to plaintiff during the period of plaintiff's employment by defendant. Plaintiff alleges that the commissions were to be paid in a sum equal to one-half of one per cent of defendant's total gross sales, and that, during the period of plaintiff's employment by defendant from May 18, 1958, to December 8, 1960, sales were made by defendant, but defendant has refused to pay said commissions to the plaintiff.
Defendant pleaded separately and severally to each count three pleas, to wit, the general issue, non assumpsit, and:
Plaintiff demurred to plea 3 on the ground that it appears from the complaint that the agreement between plaintiff and defendant was wholly executed prior to commencement of the suit and that the statute of frauds does not apply to an executed contract and is no defense to an action thereon.
It is declared in § 3, subdivision (1), of Title 20, Code 1940, that every agreement; which, by its terms, is not to be performed within one year from the making thereof; is void unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged or some other person by him thereunto lawfully authorized in writing.
That provision of the statute does not apply to such a state of facts as set up by Count 4 as a basis for recovery, even if it should be stipulated by the contract that the money is not to become due until after the expiration of one year. The contract is shown by the averments not to be executory. Nothing remains to be done except to pay the money. The statute of frauds requiring certain contracts to be in writing applies to executory and not to executed contracts. Harris Transfer & Warehouse Co. v. Moor, 10 Ala.App. 469, 471, 65 So. 416.
Plea 3 sets up the statute of frauds of one year as a defense to an executed contract, but that defense is not available against the executed contract alleged in Count 4, and the plea is not good against that count.
Defendant says that plea 3 is assigned as an answer not only to Count 4 but also to Counts 1, 2, and 3 which are the common counts, and that plaintiff's demurrer charges that plea 3 is insufficient as to all counts. We understand defendant's argument to be that since plea 3 was an answer to each count, it would not be subject to a demurrer generally, if plea 3 set up a good defense to any count, and that defendant says plea 3 does present a good defense to the common counts.
The common counts aver no special contract, and, while plea 3 refers to a contract, the plea does not set out the contract either in substance or in terms. Applied to the common counts, plea 3 cannot be understood. The statute applies only to express contracts and does not include promises implied by law like that supporting a count for money had and received and which may support other common counts. City of Greenville v. Greenville Water Works Co., 125 Ala. 625, 641, 642, 27 So. 764. The statute of frauds is not available as a defense when the suit is upon an executed contract. Lagerfelt v. McKie, 100 Ala. 430, 14 So. 281. See Wood & Pritchard v. McClure, 209 Ala. 523, 96 So. 577.
On authority of the three cases last cited, we do not think plea 3 sets up a good defense to the common counts.
Overruling demurrer to plea 3, however, was, as defendant says, error without injury, because plaintiff filed a replication alleging that the contract sued on was not executory but was fully executed prior to commencement of the suit and defendant joined issue on the replication. The case was tried on the issue whether the contract was in existence and, under the replication, plaintiff was entitled to offer evidence to prove that the agreement sued on had been made and fully executed by plaintiff.
Reversible error is not shown under Assignment 1.
Assignment 2.
Plaintiff assigns for error the ruling of the court in refusing to admit into evidence a written contract entered into by defendant, as seller, and General Motors Corporation, as buyer, whereby the seller agreed to construct and buyer agreed to buy an item called 'Junior Vans.' The name of defendant was affixed to the contract by plaintiff as Vice-President.
Plaintiff's counsel stated to the court that he offered the contract as evidence because he wanted to establish that plaintiff obtained the contract for defendant, that the order for Junior Vans was a big part of the sales made by plaintiff on behalf of defendant, and to show plaintiff's actions relative to sales of defendant. The court sustained defendant's objection to the contract.
Plaintiff then offered in evidence a stipulation showing the amount of sales made by defendant during the period for which plaintiff claimed commissions. As we understand the record, this Exhibit was admitted into evidence without objection and shows the total amount of all sales made by defendant to all buyers during the period of plaintiff's employment and includes all sales made to General Motors Corporation under the Junior Van contract which the court refused to admit into evidence.
We do not see how plaintiff was injured by not admitting the General Motors contract. He was permitted to show the amount of sales made under this contract, and also under all other contracts during the period in question. The contract with General Motors Corporation, so far as we are advised, does not shed any light on the only issue contested, to wit, whether plaintiff had a valid contract with defendant whereby defendant agreed to pay the claimed commissions to plaintiff during the period of his employment. If refusing to admit the General Motors contract was error, it was without injury to plaintiff.
Assignment 3.
Defendant says the court erred in denying plaintiff's motion to require defendant to produce for examination by plaintiff a certain letter signed by the witness Padgett, which letter, or a photostatic copy thereof, was admitted to be in the possession of defendant's attorney who was physically present in the courtroom at the time demand was made for production of the letter.
Plaintiff's counsel examined Padgett with reference to a letter dictated by Albert, while Padgett was in Albert's office, on January 6, 1961, as we understand the testimony. Plaintiff asked that defendant produce the letter. The court denied plaintiff's motion. Counsel for defendant stated that he did not have the original but he did have a photostatic copy. Defendant stated that the letter would not be admissible except to show that Padgett signed the letter. Defendant's counsel stated that he wanted to examine the witness before plaintiff's counsel saw the letter. The court stated that it was denying plaintiff the right to see the letter until defendant's counsel had had a chance to question the witness relative to the letter. The record indicates that the court then examined the letter, and that the court repeated its ruling.
After plaintiff had further examined the witness, the following appears at the close of plaintiff's direct examination of Padgett:
During defendant's cross-examination of Padgett, the following appears in the record:
...
To continue reading
Request your trial
-
Schoenvogel v. Venator Group Retail, Inc.
...officers of defendant business entities. Richter v. Central Bank of Alabama, N.A., 451 So.2d 239 (Ala. 1984); Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So.2d 775 (1967). In addition, this Court has recognized that the very language of the Dead Man's Statute requires the exclusio......
-
Boeing Company v. Shipman
...is presented. See, e. g., Huff v. Vulcan Life & Accident Insurance Co., 281 Ala. 615, 206 So.2d 861 (1968); Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So.2d 775 (1967). 10 2B Barron and Holtzoff, Federal Practice and Procedure § 1075, pp. 401, 404 (Wright ed. "It is extremely imp......
-
Norman v. Liberty Mut. Fire Ins. Co.
...only executory contracts, not executed contracts. Fowler v. Oliver , 540 So. 2d 54, 55 (Ala. 1989) ; Scott v. Southern Coach & Body Co. , 280 Ala. 670, 673, 197 So. 2d 775, 776 (1967). A contract is executory if neither party has fully performed his obligation to the other party. South Caro......
-
Cox v. Howard Hall Co.
...hypothesis should not be given in favor of the defendant. Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251; Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So.2d 775. On August 22, 1969, the day of the accident, Johnson owned three trucks or truck-tractors, all of which were under lea......