Opinion
43061.
ARGUED SEPTEMBER 6, 1967.
DECIDED SEPTEMBER 14, 1967.
Action on employment contract. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Heyman Sizemore, William H. Major, Benjamin H. Oehlert, III, for appellant.
Lipshutz, Macey, Zusmann Sikes, J. Timothy White, for appellee.
The sustaining of demurrers to the answer and thereafter entering a default judgment was error.
ARGUED SEPTEMBER 6, 1967 — DECIDED SEPTEMBER 14, 1967.
S. L. Jass entered into an employment contract with Comet Manufacturing Corporation, agreeing to serve as its salesman in a designated territory, furnishing his own automobile and insuring it at his own expense. The company agreed to supply him with samples, training materials, advertising and sales matter, and similar items for the advancement of the good will of the company. He was to receive a commission of 50 percent of the profits, as defined in the contract, and against his commission account the company would advance to him $125 per week so long as his sales in the territory amounted to at least $1,000 per week; but if the sales were less the company had the right, at its option, to stop or to reduce the advances to such amount as it might determine. All advances were to be loans to be charged against his commission account and, in the event they should exceed his account, the excess would be due and payable to the company.
Jass went to work in the territory and was advanced $125 the first week, but because his sales were substantially less than $1,000 the advances were reduced to $75 beginning the second week. After some time he terminated his employment with the company, and thereafter the company brought suit against him to recover $515.94, alleged to represent the amount of advances and other indebtedness owing to the company in excess of his commission account. The suit was in two counts, one on the contract, with a copy thereof attached as an exhibit, and the other on account, which plaintiff contends to be an account stated under the contract provisions.
Jass answered, denying any indebtedness under the contract or on account, and setting up affirmatively that although the contract appeared to be fair on its face, he had been fraudulently induced to enter into it in that the company "had no intention of carrying out its obligations under the contract" and that it "was a part and parcel of a scheme and a device on behalf of the plaintiff intended to deprive defendant of his work and labor without compensation." He alleged that the reduction of the weekly advances from $125 to $75 was arbitrary, and that out of this he was obliged to pay his own travel expenses, rendering it impossible for him to earn a living on the job.
Demurrers to the answer were sustained and a default judgment was entered, from which defendant appeals.
Enumerations of error are on the sustaining of demurrers to the answer and the entering of a default judgment.
Attached as exhibits to the petition are a copy of the contract and statements of the commission account, of the advances made and in addition a statement of certain other charges made against the defendant for such items as 6 dozen matches, 1 package (3 doz.) pencils, 6 doz. matches, 2 doz. shoe pads, 1 gal. Com-O-Teen, 1 3-way steam gun, 1 qt. Com-O-Cov, amounting to $20.03. The answer is sufficient to raise the question as to whether these items may be "samples, training materials, advertising and sales matter, and similar items, intended to create and enhance the good will of the company," which the company obligated itself to supply to Jass, and for which Jass was not obligated. Hence it was sufficient to withstand a general demurrer as to the first count. Cornett v. Frederic W. Ziv Co., 93 Ga. App. 840 (2) ( 93 S.E.2d 188).
Insofar as the allegations of fraud are concerned, we agree that these are insufficient to constitute a defense. It is not alleged that the company failed to do anything it was obligated to do under the contract, which defendant admits to be a fair one on its face. The allegations that the company had no intention of performing its obligations are no more than conclusions, unsupported by any fact. No bad faith in the execution of the contract appears from the allegations made and hence no right to recover attorney's fees and expenses of litigation is shown.
However, whether the account sued on is, under the contract terms, an account stated is another question of fact, for it is provided in Paragraph 6 that the company shall furnish a monthly statement to Jass setting forth all debits and credits, advances made and commissions created, and that unless objection is made within 30 days from its mailing or delivery it shall be held to be an account stated and all claims of the salesman relative thereto shall be barred. It is not alleged whether the statements were furnished, whether the notice was given, or whether, if so, any objection was made. Hence, the denial of the indebtedness in the answer is sufficient to withstand a general demurrer as to the second count, and it was error to strike it. Jones v. Lawman, 56 Ga. App. 764, 769 ( 194 S.E. 416).
Judgment reversed. Felton, C. J., and Hall, J., concur.