Williams v. Emery Stores Co. Inc.

Stephens, P. J.,

dissenting. While it may be conceded that no contractual relation existed between the plaintiff and the defendant when the negotiations were broken off between them by the severance of the plaintiff’s employment with the defendant, it does appear that the defendant had offered to sell to the plaintiff the stock of goods upon certain terms which could be definitely ascertainable by reference to the books and cost prices, etc., of the goods on hand at the time of the acceptance by the plaintiff of the offer as alleged in paragraph 12 of the petition. See also the letter of March 4, 1940, from the defendant to the plaintiff attached as an exhibit to the petition. I do not concur in the conclusion that the offer of the defendant to sell to the plaintiff was co-extensive with the employment of the plaintiff by the defendant, and terminated ipso facto upon the termination of the employment of the plaintiff by the defendant. In the letter of March 27, 1939, from the defendant to the plaintiff, which outlines the terms of the arrangements under which the plaintiff came to work for the defendant, it is stated as follows: “As soon as you can make arrangements, you take charge of the eight Atlanta stores. Billing merchandise for the time being to be exactly as we are handling for all other stores. Salary to be $5000 per year plus 1 % on sales. This is to be continued as long as we are both happy with the arrangement, with the understanding that the stores may be purchased at your option either outright by yourself or the writer will join you in forming a corporation, the writer to own around 50 % of the stock. As to the exact division, this will be left in your hands.” In the letter it is further stated as follows: “In case you should decide to buy the entire interest of the store, it would necessarily be billed at the value of the stock at the time you bought it. In other words, if $5000 or $10,000 profit had accrued from the time the two of us started the company to the time you bought it over, of course, this profit would be split in proportion to stocks owned. In the event you did buy the entire company, the Emery Stores Co. would continue to bill merchandise at exact delivered cost and would then bill you with 3 % on your gross sales inasmuch as there would be no profit to accrue either to the Avriter or the company in any Avay except 3 % on sales.” It is further stated in the letter: “It is not probable that you would want to enter into a definite legal contract binding us both in such a way that we would be compelled to go ahead with this arrangement in the eArent either or both of us were not happy with our relations; however, am sure that you are eomdnced, as well as ourselves, that if we are happy in the new relation there will be no- difficulty whatsoever in working out a very satisfactory plan for both of us.” While this letter does not clearly state what the respective parties proposed to do in every respect, it does clearly give to the plaintiff an option to purchase the property at some ascertainable price. It clearly precludes its being any binding contract between the parties. It states that the arrangement under which the plaintiff was employed was to be continued '“as long as we are both happy with the arrangement,” and then goes on to say it is the ■ “understanding that the stores may be purchased at” the plaintiff’s option. The arrangement referred to, which Avould continue as long as both parties were '“happy” with it, would seem to be the arrangement as to the employment of the plaintiff by the defendant. It does not appear that the option given to the plaintiff to purchase the property was withdrawn or expired when the plaintiff and defendant ceased to be “happy” with the arrangement. It appears from the allegations that the plaintiff accepted this offer after the termination of the contract of employment, which was on February 14, 1941, and before the offer to sell to the plaintiff was withdrawn, unless the termination of the contract of employment involved a withdrawal of the offer. It appears from the petition that he remained in the defendant’s employment until February 14, 1941, at which time the defendant by letter stated that the defendant '“was not happy in its business relations with plaintiff and that therefore defendant had determined to terminate plaintiff’s contract of employment.” This letter, as alleged, had reference only to the termination of the contract of employment, and did not withdraw the defendant’s offer to sell the property to the plaintiff. It appears from the correspondence that under the arrangement the plaintiff had obtained security. He had no security unless the defendant’s offer to sell remained open after the employment terminated. It therefore would seem that, even after the termination of the employment arrangement between the defendant and the plaintiff, which terminated when either side became unhappy with the arrangement, the defendant’s offer to sell to the plaintiff was still an outstanding offer, and that the plaintiff accepted this offer. This offer and acceptance made a contract, since it appears as above indicated that the price which the plaintiff would pay for the stores in the event he exercised the option was definitely ascertainable.

I am therefore of the opinion that the petition set out a cause of action for a breach of contract by the defendant to sell to the plaintiff in accordance with the offer of the defendant, which offer, upon acceptance by the plaintiff under its terms, became a contract with the essential terms thereof definitely ascertainable.