Pita v. Whitney

1. Where, in a suit by an employer to enjoin an employee from going upon the plaintiff's premises and continuing to occupy a house furnished the employee for use in connection with his employment, it appears that the employee has been discharged, a verdict for the plaintiff is authorized, although the employee contends that he was discharged contrary to the terms of the contract of employment.

2. Where the contract of employment fixes the salary to be paid for the first year at $500 per month, and provides that thereafter it shall be more, but fails to stipulate the amount, there is no contract beyond the first year. A suit to recover for an alleged breach of such a contract which fails to allege the date of such breach is insufficient to support a recovery; and therefore the demurrer in the instant case was properly sustained.

3. An amendment containing allegations that directly contradict the original petition should not be allowed, where no attempt is made to strike the conflicting original allegations.

No. 13417. SEPTEMBER 25, 1940. Helen Hay Whitney brought suit against E. A. Pita, alleging that he was in possession, as her employee, of certain real estate belonging to her; that he was employed by the month at $500 per month for a period not to exceed twelve months; that in connection with his services he was permitted to occupy as a residence a cottage on her premises; that she had notified Pita that his services were no longer needed and that he was discharged; but that he refused to vacate her premises. She prayed for injunction to prevent him from going upon or occupying the described premises. The defendant answered, denying the material allegations of the petition, and setting up a counter-suit whereby he sought to recover damages in the total sum of $137,831, resulting from an alleged breach by plaintiff of an alleged contract as overseer. The cross-action alleged that F. S. Rollins was agent and attorney for plaintiff; that defendant's contract of employment was made with Rollins on behalf of plaintiff; that at the request of Rollins the defendant went to Thomasville on December 20, 1938, carrying with him a letter from Rollins to W. T. Mardre, then superintendent of plaintiff's premises, which letter informed Mardre of certain proposed changes whereby he was to be demoted to farm manager with reduced salary; that Mardre resigned his position, whereupon and immediately thereafter the defendant called Rollins by telephone from Thomasville to New York, and discussed the situation, and the agreement and contract of employment as overseer was entered into; and that it was subsequently discussed and confirmed "as hereinafter set forth." Subparagraph j of paragraph 16 alleged that "the conversation between defendant and the said Rollins referred to in the preceding paragraph was as follows." Then followed what purports to have been the conversation between the defendant and plaintiff's agent which constitutes the contract of employment. In this conversation the defendant is alleged to have said that he was willing to take the job, but that he could not give up a steady position for a temporary one; to which Rollins replied that he realized that fact, but that defendant would also realize that he could not guarantee to keep defendant on the job forever if he failed to accomplish the results looked for. These results he defined to be improved management and substantial reduction in the cost of running the place. The defendant expressed confidence that he could accomplish these results, and Rollins stated that he was also confident that he could do it, but said, "If by any chance you were to fail, I would be severely criticized. But if I can show that you can run the place efficiently and can make substantial savings, my judgment will have been justified, and I will be only too happy to keep you down there as long as the job is there." The defendant replied, "All right, but in order to show these results I must have a reasonable time. . . It may take months before I begin to show results." Thereupon Rollins stated: "I realize that. Suppose we allow you a year to show results?" The defendant then said, "That will be all right." Rollins asked, "How much do you want?" The defendant replied, "I'll be willing to start with $500 a month and a house; but if at the end of the year I show the expected results, I expect an increase." Rollins then said, "All right, Mr. Pita, you are on. When are you going to resign?" Subparagraph n of paragraph 16 states that defendant was formally and definitely appointed overseer in a letter from Rollins, dated February 15, 1937, a copy of which is set out, and which in part stated: "You are now in full charge of Greenwood Plantation, and I want you to know that you can make such changes in the personnel (Miller excepted) as you think best, without consulting me." The cross-petition also set out in detail numerous letters from Rollins to Pita, in which satisfaction with the service of defendant was expressed; and it was alleged that at the time of his employment the defendant was connected with a reputable firm where his earnings were approximately the same as provided under the contract with the plaintiff, and that he had effected the economies contemplated while working for plaintiff.

The defendant tendered two amendments to subparagraph j of paragraph 16, the first of which stated: "The foregoing was preliminary and led up to and resulted in the final consummation of a definite contract between the plaintiff and the defendant, whereby the former agreed to employ and the defendant agreed to work for the plaintiff for the period of his natural life, at a salary of $6,000 per annum, predicated on the sole condition that defendant could and would put into effect managerial plans that would result in a savings in the operation of said plantation of a sum to the extent of $25,000 or $30,000 per annum." The defendant further alleged that he had effected savings amounting to at least $55,000 per year. The amendment also set out detailed duties which the defendant was to perform under the contract. The second amendment sought to add to subparagraph j a new paragraph numbered j(2), in which it was alleged that a further consideration to support the contract was defendant's relinquishment of a position of employment that was paying him $6000 a year. The plaintiff objected to the allowance of these amendments, on several grounds, one of which was that the allegations contained therein are conclusions of the pleader and are contradictory to the allegations in the original answer. The objections were sustained, and the amendments disallowed. The plaintiff filed general and special demurrers to the cross-petition; and after a hearing thereon the demurrers were sustained and the cross-petition dismissed. The defendant excepted pendente lite to the rulings disallowing the two amendments offered, and to the rulings sustaining the plaintiff's demurrer and dismissing his cross-action.

The case was tried on the following stipulation:

"1. It is stipulated and agreed that the occupancy by the defendant Pita of the premises described in the plaintiff's petition grew out of, and was a mere incident of, his employment by the plaintiff Helen Hay Whitney.

"2. It is agreed and stipulated between the parties that whatever contract of employment existed between plaintiff, Helen Hay Whitney, and the defendant, E. A. Pita, was made on behalf of the said Helen Hay Whitney by her agent, F. S. Rollins; and that said E. A. Pita was definitely discharged by the said F. S. Rollins and commanded to vacate the premises in dispute, by a certain writing dated November 10, 1939, which was prior to the bringing of the plaintiff's petition.

"3. It is agreed and stipulated that the only relief sought in the plaintiff's petition was a restraining order and injunction to prevent Pita from further occupying or going upon the plaintiff's premises.

"4. That the defendant filed an answer, and in said answer set up a cross-action seeking to recover a money judgment against plaintiff, and that said cross-action has been stricken on demurrer, and the defendant could not in the present state of the pleadings in said cause obtain any relief against the plaintiff, Helen Hay Whitney.

"5. That in view of the foregoing stipulations and agreement it would be proper for the judge of the superior court to direct a verdict in favor of the plaintiff for a perpetual injunction, as prayed in the plaintiff's petition, without thereby adjudicating or attempting to adjudicate the merit of defendant's services while in the employment of the plaintiff, or the term of the contract between the plaintiff and defendant, or the justification or lack of justification for defendant's discharge.

"6. It is further stipulated and agreed between the parties that said verdict as contemplated in stipulation 5, and a proper decree to be entered thereon, will not hereafter be pleaded by either plaintiff or defendant as res adjudicata upon the questions embraced in stipulation 5 as being adjudicated by such disposition of the case."

The trial resulted in a verdict and judgment granting the relief prayed for by the plaintiff. The defendant moved for a new trial on the general grounds only, and error is assigned upon the judgment denying this motion. 1. The final exception is to the refusal to grant a new trial. The plaintiff established by proof such a case as entitled her to an injunction, under the authority of the case of Mackenzie v. Minis, 132 Ga. 323 (63 S.E. 900, 23 L.R.A. (N.S.) 1003, 16 Ann. Cas. 723); and a new trial will not be granted unless, in considering the other assignments, it be determined that previous rulings on the pleadings contained such error as rendered nugatory the trial before the jury.

2. The cross-action is based entirely upon an alleged breach of contract. This contract is set out in subparagraph j of paragraph 16. It is contended that the contract is to run during the life of the employee Pita. This contention, however, has no support in the portions of the contract dealing with the question of its duration. On this point the contract states that the employment shall be for one year. A conditional portion of the contract provides that if expected savings are realized during this period, then it shall continue as long as the job is there. These provisions of the contract are wholly irreconcilable with the contention that it is to continue during the life of the employee. Another essential part of the contract, that fixing the amount of compensation, shows that no contract was agreed upon beyond a period of one year. The compensation is by the terms of the contract definitely fixed at $500 a month for one year; but the stipulation in the contract that at the end of this period a different compensation exceeding that for the first year shall be paid, but silent as to what this amount shall be, shows that the parties failed to agree upon any contract beyond a period of one year. The consent of the parties is an essential part of any contract, and every material term must be assented to. In a contract of employment the compensation to be paid is a material part, and until the parties have agreed upon a definite amount to be paid the contract is incomplete; and until each party has assented to the material parts of the contract either party has a right to withdraw therefrom. Code, § 20-108. Applying this principle of law to the facts as set up in the pleadings, the plaintiff still has the right to withdraw from that portion of the proposed contract wherein the amount of compensation remains unfixed. As supporting the conclusion here reached, see Bentley v. Smith, 3 Ga. App. 242 (59 S.E. 720); Oliver ConstructionCo. v. Reeder, 7 Ga. App. 276 (66 S.E. 955); Weegham v. Killefer, 215 Fed. 168; Boatright v. Steinite Radio Corporation, 46 F.2d 385; Savannah Guano Co. v. Fogle,112 S.C. 234 (100 S.E. 59).

This leaves for our consideration only the contract providing for employment for a period of one year. The countersuit seeks to recover damages resulting from an alleged breach of the contract. Were we dealing with a life contract, the date when the contract became effective would be immaterial; but since it is only for one year, and since the cross-petition nowhere states how much of the contract remains unperformed, the effective date of the contract is essential. Unless the pleadings show in some way that the contract was breached and that it was to run for a definite period of time beyond such a breach, no legal judgment for damages can be awarded. For the reasons stated above, the original cross-action alleged no cause of action, and it was properly dismissed on demurrer.

3. But it is contended that had the two amendments offered by the defendant been allowed a good cause of action would have been stated, and that accordingly it was error to disallow these amendments. The first amendment alleges that the contract was for the period of defendant's life. As ruled in division 2, the original pleadings alleged that the contract was for only one year. In this respect the averments in the original and the amendment are contradictory and irreconcilable. The amendment alleges that the compensation to be paid after the first year was fixed at the definite sum of $6000 per annum, whereas the original plea stated that this compensation should be an increase above the $6000 paid for the first year, although no amount was fixed. Thus it is apparent that the two averments are in hopeless conflict; for certainly an increase above $6000 is irreconcilable with exactly $6000. No attempt was made to strike the conflicting allegations; and because of such conflict the amendment should not have been allowed. Beecher v. Carter, 189 Ga. 234 (2) (5 S.E.2d 648). The other portions of this amendment sought merely to define the duties of the employee, and to state a further consideration to support the contract of employment. It is apparent that none of these allegations would save the original cross-petition from the fatal defects contained therein, and that if these portions of the amendments had been allowed they would have fallen along with the original plea of which they would have become a part. There was no error in disallowing each of the proffered amendments.

Judgment affirmed. All the Justices concur