Opinion
36918.
DECIDED JANUARY 8, 1958.
Action on employment contract. Before Judge Henson. Fulton Civil Court. August 19, 1957.
Ginsberg Haskins, Sidney Haskins, for plaintiff in error.
MacDougald, Feagin Williams, John E. Feagin, contra.
1. ( a) The evidence authorized verdicts in favor of the plaintiff on both the main and cross-actions.
( b) The question whether the contract sought to be enforced was subject to the statute of frauds cannot be raised for the first time in this court.
2. Georgia Laws, 1953, Jan.-Feb. Sess., p. 224, pertaining to request for admissions and response thereto, is not applicable in the Civil Court of Fulton County. Therefore, the court erred in not sustaining the defendant's objections to request for admissions made by the plaintiff; however, for the reasons given in the opinion such error was harmless.
DECIDED JANUARY 8, 1958.
Anthony Testa sued Ross Ross Auctioneers, Inc. for money allegedly due the plaintiff under a contract of employment. The plaintiff alleged substantially the following: "2. Defendant is in the business of conducting auction sales of various and sundry industrial equipment and government surplus property and did conduct on August 19 and 20, 1954, a sale in Richmond County, Georgia, for the Atomic Energy Commission, and on August 21, sales for financial institutions, construction equipment dealers and others, among whom were the General Credit Association of Atlanta, the Broom Equipment Company, and the General Truck Company of Charlotte, North Carolina. 3. On June 30, 1954, at approximately 11:30 p. m. in the office of Ross Ross Auctioneers, Inc., defendant, by and through its agent, officer and director, Percy Ross, did employ plaintiff full time at a salary of one hundred dollars ($100) per week plus expenses, plus a commission of twenty-five percent (25%) of the gross income, exclusive of advertising allowances accruing to Ross Ross Auctioneers, Inc., out of two auction sales at Augusta, Georgia, to be conducted August 19, 20 and 21, 1954, said employment to begin as soon as plaintiff was free to go to Augusta, Georgia. The aforesaid agreement was entered into orally and was to be reduced to writing by defendant, which has not yet been done by defendant. 4. Petitioner's obligations under the aforesaid agreement was to represent defendant as executive assistant and field representative in the Southeastern area, with his first assignment to be the supervision of the sale to be held for the Atomic Energy Commission at Augusta, Georgia, on August 19 and 20, 1954, and a second sale to be held at Augusta, Georgia, on the 21st of August, 1954. Petitioner's specific obligations were to prepare the catalogs for the two separate sales, to prepare the ground where the sales were to be conducted, and to supervise the assembly and placement of the equipment to be auctioned, and in general to supervise and have carried out all preliminary preparations for the two auction sales. 5. Petitioner arrived in Augusta, Georgia, pursuant to the aforesaid agreement on July 7, 1954, and did from that date until the date of August 18, 1954, at approximately 7 p. m., the night before the auction was to commence, did effectively and efficiently carry out all the obligations undertaken by him under the aforesaid contract. 6. At the said 7 o'clock p. m. of August 18, 1954, immediately prior to the two sales, petitioner was summarily discharged without cause or reasonable excuse at a time when plaintiff was ready, willing and able to fulfill all the obligations undertaken by him pursuant to said employment contract, and would have done so had he not been prevented from so doing by the unlawful act of the defendant in summarily discharging petitioner. 7. At the time of the discharge petitioner was owed by the defendant one hundred dollars ($100) salary for the week ending August 6, had received a check covering salary for the week of August 13, upon which payment was subsequently stopped by the defendant, and had earned salary for the five days from August 13 to August 19. Petitioner had further done all that was necessary and required of him under the aforesaid employment agreement to earn the aforementioned twenty-five percent (25%) of the gross income of defendant from the auction sales to be held August 19, 20 and 21 in Augusta, Georgia. 8. The amount of said gross income on the two said auction sales on August 19, 20 and 21 is very well known to defendant, and which petitioner alleges upon information and belief to have been as follows: . . . Total Gross Income $21,216.63. 9. Defendant has refused to pay the aforesaid nineteen (19) days salary at the rate of one hundred dollars ($100) per week and has refused to pay to petitioner twenty-five percent (25%) of the gross income of defendant from the aforesaid two auctions, which sums are as follows: . . . Total $5, 575.58."
The defendant filed a cross-action in which it seeks to recover for damages allegedly caused by the plaintiff's breach of the employment contract and because of his bad faith.
The plaintiff filed a request for admissions. The defendant filed objections and demurrers to the request for admissions which were overruled, and the defendant responded to the request.
The trial judge sitting without the intervention of a jury found for the plaintiff in both the main action and the cross-action.
The defendant's motion for a new trial on the general grounds only was denied and it excepts to this judgment and to the judgment overruling its objections and demurrers to the request for admissions.
1. (a) The evidence authorized the verdict. The plaintiff testified that the contract between the defendant and him was for a salary of $100 per week plus expenses plus twenty-five percent of the gross profits accruing to the defendant out of sales handled by the plaintiff. The defendant's witness testified that the employment contract only provided for a salary of $100 a week plus expenses and did not provide for any percentage of the gross profits as contended by the plaintiff. The trial court was authorized to believe the plaintiff in preference to the defendant's witnesses and to find that his testimony revealed the true contract between the parties.
The defendant introduced in evidence a letter from the defendant's accounting department in which was contained the following statement: "Mr. Ross advised me that your employment with our firm started as of July 7, 1954, and that you are to receive a salary of $100 per week. I am enclosing a check for $50 to cover the payroll period up to July 9, 1954. Our payroll week is from Friday to Thursday." To that letter the plaintiff responded: "Thanks for the check, but in the future, please forward all pay checks to my home address, 1245 Atwood Ave., Akron 1, Ohio." The defendant contends that under the principles of law set out in Code §§ 38-120 and 38-409, the plaintiff admitted that the contract was as contended by the defendant. The contention is without merit. Defendant's letter was dated on July 9, 1954, which was two days after the plaintiff's employment began. The letter did not mention expenses, yet the defendant readily admits that it was to pay the plaintiff's expenses. The letter did not seek to set up the terms of the employment but merely stated that he was to receive a salary of $100 a week and that a check for part of a week's salary was enclosed. In response to such letter, the plaintiff could not have objected to the failure to mention any percentage of the gross profits because as of that time the plaintiff had not participated in or conducted a sale and was, therefore, not entitled to or due any percentage of gross profits.
The evidence also authorized the finding that the defendant was not guilty of any breach of the employment contract or guilty of any fraud or bad faith.
(b) The question as to whether the contract sought to be enforced should have been in writing and was subject to the statute of frauds will not be considered where it was raised for the first time on appeal and was never raised in the trial court. Butler v. Milam, 26 Ga. App. 126 (1) ( 105 S.E. 628).
2. The defendant's objection to the request for admissions as a whole was based on the following ground: "That the act providing for admissions of facts (Georgia Laws January-February Session 1953, page 224) is limited both by its caption and by its body to `civil actions in the superior courts,' and for that reason the same is not applicable to the above action which is pending in the Civil Court of Fulton County." The plaintiff contended that request for admissions could be made in the Civil Court of Fulton County because the act creating such court and acts amendatory thereof provide that where the amount sued for is $300 or more, "the pleadings in such cases shall be in conformity with the rules of pleadings . . . in the superior courts of the State of Georgia." (Ga. L. 1933, p. 297.) The plaintiff contends that request for admissions and responses thereto are pleadings and, therefore, Ga. L. 1953, Jan.-Feb. Sess., p. 224 applies to the Civil Court of Fulton County. The contention is without merit. The act of 1953 is identical with Rule 36 of the Federal Rules of Practice and Procedure, 28 U.S.C.A. 332. Hobbs v. New England Ins. Co., 212 Ga. 513, 517 ( 93 S.E.2d 653). It has been held in relation to the Federal rule that neither the request for admissions nor the sworn statement or the denial of the opposite party can be regarded as a pleading since they pertain only to the matter of proof. See Van Horne v. Hines, 31 F. Supp. 346 (1); Sieb's Hatcheries, Inc. v. Lindley, 13 F. R. D. 113; Dulansky v. Iowa-Illinois Gas Electric Co., 92 F. Supp. 118 (1); Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Vol. 2, § 831, p. 537. We think that the same rule pertains to the Georgia statute and that request for admissions and responses thereto are not pleading. Therefore, the rule is not applicable in the Civil Court of Fulton County, and the court erred in not sustaining the objection to the request for admissions. However, no harm is shown to the defendant in such error because it does not appear that the request for admissions and the responses thereto were admitted in evidence and considered by the court in rendering his judgment.
The court did not err in denying the defendant's motion for a new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur.