Doom v. Studebaker Corp. of America , 22 Ga. App. 705 ( 1918 )

Luke, J.

1. Where in a contract of service it is stipulated that it may be terminated upon certain notice, a verbal new agreement at a lesser sum for service, which does not give the right to the employer to terminate the contract upon notice, but provides a definite .and specific duty and fixes a definite compensation, and which is acted upon by both parties, payment being made and accepted thereunder, is not void for want of consideration.

(а) The new verbal contract supersedes the original contract.

(б) A petition setting up these facts and seeking recovery upon the original contract is subject to demurrer.

2. The court did not ei-r in. sustaining the general demurrer to the petition.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.

Exhibit A is a statement of commissions amounting to $897.50 “from June 1,1915, to August 1, 1915.” The written contract of December 1, 1914, is signed by the parties and states that in consideration of the mutual covenants therein the Studebaker Corporation of America agrees to employ J. M. Doom for a’ period of one year from December 1, 1914, in the capacity of retail sales manager, and to pay him as compensation thereunder a commission of 10% on cash received from retail sales of cars, made by himself, and 3% on balance of cash received from all cars sold by- other members of the retail division of the Atlanta branch; that the said employee agrees to give his full time and discharge of duty to the company for the compensation aforesaid; and “This employment shall be subject to termination at any time upon thirty days’ notice given by either .party to the other, and upon termination of this employment for any reason all compensation shall cease accruing. If employee remains in the service of the company beyond the period of this agreement the, condition hereof will apply.” Exhibit C is a statement of account for “salary due . . for the week ending April 7th, 1916, 'at $50 per week, due according to the terms of the contract executed August 1st, 1915.” Exhibit D is a written contract dated September 18, 1915, reciting that it is entered into as of August 1,1915, and providing for commissions different from those provided for in the preceding contracts, and guaranteeing that they will not average less than $50 per week.

The defendant demurred to the petition generally and specially, and the court sustained the demurrer and dismissed the petition.

'Edgar Watkins, Horace Russell, for plaintiff, cited:

Davis v. Morgan, 117 Ga. 504 (61 L. R. A. 148, 97 Am. St. R. 171); Duncan v. Cone Incorporated, 16 Ga. App. 253; Thurston v. Ludwig, 67 Am. Dec. 328.

Rosser, Slaton, Phillips & Hopkins, for defendant, cited:

McDonald v. Alabama Ins. Co., 85 Ala. 414 (100 Am. R. 393); Civil Code (1910), § 4242; Sigler v. Sigler, 98 Kan. 524 (L. R. A. 1917-A, 725, 727, 731); Kehoe v. Sou. Paving Co., 7 Ga. App. 236 Wellmaker v. Wheatley, 123 Ga. 201.