Dameron v. Liberty National Life Insurance

Guerry, J.

W. H. Dameron brought suit against Liberty National Life Insurance Company for an alleged breach of a contract of employment. The petition alleged, that on February 1, 1932, the plaintiff was employed by and began work for the defendant as an insurance agent for the purpose of issuing insurance policies to members of the general public, and to collect premiums thereon weekly; that this contract of employment was oral, and was for a term of five years; that he worked for the defendant, under the contract, from the above date until May 20, 1932, at which time he was wrongfully discharged; that during these months he fully complied with his part of the contract; that under the terms of the contract he earned about $15 in February, about $30 in March, about $45 in April, and about $50 in May up to the time he was discharged; and that he would have continued to earn $50 per month for the duration of the contract. The defendant demurred on the ground that it affirmatively appeared from the petition that the contract was one of employment not to be performed within a year, and therefore was within the statute of frauds and unenforceable. Code, § 20-401 (5). This demurrer was sustained, with leave granted to the plaintiff to amend his petition. In an effort to take the contract without the statute of frauds, the plaintiff filed two amendments to his petition, alleging substantially that in preparing to carry out his part of the contract with the defendant he purchased an automobile at a cost to him of about $250, which automobile he used in building up business for the defendant in the territory assigned to him; that during the time of his performance of the contract he operated the automobile at an expense of about twenty-five cents per day; that after his wrongful discharge he was unable to find employment, and was compelled to and did sell the automobile for $100, thus causing a loss to him of $150 on the purchase-price of the car; that in soliciting insurance policies, collecting premiums, and delivering policies, it was necessary for him to go into and over said territory daily, and in doing so it was necessary for him to have the use of an automobile in reaching the various parts of his territory. The demurrer to the petition as amended was sustained, and the action was dismissed.

The only question to be considered is whether the purchase of the automobile as alleged operated as' such “part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance” (Code, § 20-402, par. (3)); for it is well settled that the fact that the person who has contracted to serve another under such a contract enters on the performance of his contract, does not take the case out of the statute. Bentley v. Smith, 3 Ga. App. 242 (59 S. E. 720); Lewis v. Southern Realty Investment Corporation, 42 Ga. App. 171 (155 S. E. 369). Upon the question thus to be decided the judge in his order sustaining the demurrer aptly said: “The plaintiff alleged that he bought an automobile at a cost of a few hundred dollars, which he used in soliciting business; hut it does not appear that the alleged contract called for the purchase of a car. The car belonged to the plaintiff, and he has since sold it.” “The part performance which will take a contract out of the operation of the statute of frauds is such as is, within the terms of the agreement, an essential part of the contract, and, as such, is essential to the performance of the contract.” Bentley v. Smith, supra. In other words the part performance which results in a loss to the employee and a benefit to the employer must have been the performance of something required by the terms of the contract. Barnett Line of Steamers v. Blackmar, 53 Ga. 98. Nowhere in the petition is it alleged that it was a part of the contract of employment that the plaintiff should purchase the car. The mere allegation that it was necessary for the plaintiff to purchase the automobile does not amount to an allegation that it was a part of the contract that he should do so, or was in contemplation of the parties to the contract and mutually agreed to by them. The judge did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.