Berwick v. Riordan Protective Services, Inc. , 185 Ga. App. 232 ( 1987 )

Deen, Presiding Judge.

The appellant, Dane Berwick, was employed as a commissioned salesman with the appellee, Riordan Protective Services, Inc. (Riordan). He commenced this action against Riordan to collect commissions on four contracts that he claimed became due after his termination of employment. The trial court directed a verdict for Riordan, and Berwick appeals.

Decided December 4, 1987. D. Miles Stinson, for appellant. John J. Capo, for appellee.

On September 3, 1986, Berwick procured four contracts with Equitec Properties Company, for the installation of alarm systems in four buildings. The contracts provided that payment would be due upon completion of the work and inspection and approval by the fire marshal. It was uncontroverted that the fire marshal inspected and approved three of the buildings on October 30, 1986, and the fourth on December 9, 1986. Berwick had tendered his written resignation on October 3, 1986, and on October 23, 1986, had added a notation saying that “we are even on amount due.” On October 23, 1986, he also received his last pay check for $489.91. Held:

The trial court directed a verdict for Riordan on the basis that Berwick’s receipt of the last pay check simultaneously with making the notation “even on amount due” on October 23, 1986, demanded the finding that he had settled his claim for any other commissions. The trial court would not allow Berwick to explain what “amount due” the notation referred to. Had payment under the four contracts in question been due prior to October 23, 1986, perhaps this outcome would have been proper. However, under those contracts such payment was not due until the fire marshal approved the work, which did not occur until October 30, 1986, and December 9, 1986. Under these circumstances, we cannot agree that the evidence demanded the finding that Berwick had settled his claim for commissions due under these four contracts.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.