White v. Simplex Radio Co.

• Decision Date: 24 June 1939
• Docket Number: 12824
• Parties: WHITE v. SIMPLEX RADIO CO. SIMPLEX RADIO CO. v. WHITE.
• Court: Georgia Supreme Court

3 S.E.2d 890

188 Ga. 412

WHITE v. SIMPLEX RADIO CO.

SIMPLEX RADIO CO. v. WHITE.

No. 12824

Supreme Court of Georgia

June 24, 1939

Rehearing Denied July 14, 1939.

Certified Questions from Court of Appeals.

Syllabus by the Court.

The Court of Appeals certified the following question: 'Is an oral contract of employment, entered into in the year 1934 for the remainder of that year, which further provides that said contract of employment should continue from year to year thereafter, unless notice of intention to terminate said contract for any succeeding year be given by either party 90 days prior to December 31 of the preceding year, within the statute of frauds as being an 'agreement * * * that is not to be performed within one year from the making thereof' (Code, § 20-401, subsection 5), so that such employee can not maintain an action for the breach of such contract for the year 1938, upon being discharged in February of that year (after having worked under said contract continuously since its inception), where no notice was given by the employer 90 days prior to December 31, 1937, of his intention to terminate the contract as of January 1 1938?' Answered in the affirmative.

Houston White and David Gershon, both of Atlanta, for plaintiff in error.

Brandon Hynds & Tindall and Furman Smith, all of Atlanta, for defendant in error.

BELL Justice.

The Court of Appeals certified three questions in this case, the first question being as follows: 'Is an oral contract of employment entered into in the year 1934 for the remainder of that year which further provides that said contract of employment should continue from year to year thereafter unless notice of intention to terminate said contract for any succeeding year be given by either party 90 days prior to December 31 of the preceding year, within the statute of frauds as being an 'agreement * * * that is not to be performed within one year from the making thereof' (Code, § 20-401, subsection 5), so that such employee can not maintain an action for the breach of such contract for the year 1938, upon being discharged in February of that year (after having worked under said contract continuously since its inception), where no notice was given by the employer 90 days prior to December 31, 1937, of his intention to terminate the contract as of January 1, 1938? Attention is called to the following authorities:Butler v. Godley, 51 Ga.App. 784, and cases cited at page 787, 181 S.E. 494; 27 C.J. pp. 188, 189, §§ 119, 124; General Electric Inspection Co. v. Ebling, 52 Misc. 145, 101 N.Y.S. 648; Morris v. Virginia-Carolina Chemical Corp., 48 Ga.App. 702, 173 S.E. 486; Dolan v. Miller, 179 A. 619, 13 N.J.Misc. 543; Biest v. Ver Steeg Shoe Co., 97 Mo.App. 137, 70 S.W. 1081.'

It seems that no similar question relating to contract of employment has ever before been decided either by this court or by the Court of Appeals of this State. So far as the courts of other jurisdictions have dealt with like questions, the decisions are not altogether reconcilable. On principle as well as what appears to be the greater weight of persuasive authority, we are of the opinion that the question here propounded should be answered in the affirmative; that is to say, that the statute of frauds is applicable. Under the Code, § 61-102, 'Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol.' On construction of this statute it has been held that such a contract is enforceable even though it is made before the year begins. Steininger v. Williams, 63 Ga. 475; Neely v. Sheppard, 185 Ga. 771, 785, 196 S.E. 452; Butler v. Godley, 51 Ga.App. 784, 787, 181 S.E. 494. Contracts of employment, however, except contracts with overseers, are within the statute of frauds if they are 'not to be performed within one year from the making thereof.' Code, § 20-401(5). Accordingly, a contract of employment for a period of one year, to begin at a future date, is subject to the statute of frauds and required to be in writing. Kelly v. Terrell, 26 Ga. 551; Hudgins v. State, 126 Ga. 639, 643, 55 S.E. 492; Bentley v. Smith, 3 Ga.App. 242(2), 59 S.E. 720; Bagwell v. Milam, 9 Ga.App. 315(4), 71 S.E. 684; Williams v. Garrison, 21 Ga.App. 44(2), 93 S.E. 510; Morris v. Virginia-Carolina Chemical Corporation, 48 Ga.App. 702, 173 S.E. 486.

The agreement here under consideration not only covered the remainder of the year 1934, but further provided that 'said contract * * * should continue from year to year thereafter, unless notice of intention to terminate said contract for any succeeding year be given by either party 90 days prior to December 31 of the preceding year.' Seemingly there could be no substantial difference between a contract containing such a provision, and one made expressly for an indefinite number of years but subject to termination by either party on notice. In the latter case, according to a majority of the courts, the contract would be for more than a year and within the statute, whether or not the contingency as to notice was to arise more or less than a year from the original agreement. In Biest v. Ver Steeg Shoe Co., 97 Mo.App. 137, 70 S.W. 1081, 1082, 1086, it was said by the Court of Appeals of Missouri that 'most cases * * * hold a contract to render service for more than a year to be within the intention and force of the statute, notwithstanding one or both of the parties may have the option of ending it by notice in a year, because full performance cannot be rendered in a year consistently with the understanding of the parties,' many cases being cited. In Marble v. Clinton, Mass., 9 N.E. 2d 522, 524, 111 A.L.R. 1101, it was said: 'Contracts for service for more than a year, subject to termination within a year at the election of a party upon the happening of some event, or even at the mere will of a party, have generally been held to be within the statute. The contemplated performance would occupy more than a year. If the contract should be terminated within the year, the result would not be an alternative form of performance, but excusable nonperformance.' The reason for this view was expressed in Meyer v. Roberts, 46 Ark. 80, 55 Am.Rep. 567, as follows: 'Nor does it make any difference that the contract, if for more than a year, is subject to determination sooner on a given event. This is illustrated by the case of Dobson v. Collis [Eng.Ex.Rep. (1856)], 1 Hurl. & Nor. 81, where a traveling agent was employed for two years, with a provise that the contract might be determined on three months' notice. Pollock, C. B., stated that the object of the statute was to prevent contracts, not to be performed within the year, from being vouched by parol evidence, when at a future period any question might arise as to their terms, and that a contract was not the less a contract not to be performed within a year because it might be put an end to within that period. And Alderson B., observed: 'When once the contract exceeds the year, the circumstance that it is defeasible will not make it other than a contract for more than a year. See the absurdity of holding otherwise; at the end of two years and a half one of the parties might claim a right to put an end to a parol contract for five years by giving three months' notice; but the very subject of dispute might be, whether or no he had a right to give such notice. That shows that this is a contract within the statute.'' The facts in the Meyer case were as follows: The plaintiff made a contract in October, 1882, to work for the defendant for the remainder of that year, and also for the following year provided neither party should object on the first day of January, 1883, to continuance of the arrangement. The plaintiff was discharged by his employer about May 1, 1883, and thereafter filed suit for damages. As indicated in the foregoing quotation, it was held on review that the contract was within the statute of frauds, and that the plaintiff could not recover. See also Wagniere v. Dunnell, 29 R.I. 580, 73 A. 309, 17 Ann.Cas. 205. The contract here under consideration falls squarely within the principle ruled in these cases. See also 25 R.C.L. 459, § 34; 27 C.J. 186, § 112.

Whether or not a contract for a term longer than a year but subject to termination by either party within a year from the original agreement should be distinguished from a contract for a year but subject to extension or renewal beyond that period, and whether also a distinction should be made between a contract containing a condition precedent as to its continuance and one containing a condition subsequent as to that feature (Code, § 20-110), the present agreement as applied to years after 1934 could not be sustained upon any theory that might result from such distinctions. By its express terms it was to continue for more than a year from its date in 1934, and even for an indefinite number of years, unless it was terminated by notice. This was a...