Opinion
34958.
DECIDED JUNE 23, 1954.
Action on contract. Before Judge Henson. Fulton Civil Court. October 20, 1953.
Augustus M. Roan, M. T. Hartman, III, for plaintiff in error.
Stonewall H. Dyer, Jack P. Turner, contra.
1. The agent's alleged parol promise, to pay his principals' employee what the principals already owed the employee, to see to it that an employment contract previously entered into was carried out, and to pay the employee all that was due him, if the employee would continue to render his services, was collateral to the principals' subsisting obligation to do the same thing; and the agent was not alleged to have sufficient interest in the services rendered to show that they were of direct, pecuniary benefit to him. The agent's parol promise to assume his principals' debt was within the statute of frauds (Code § 20-401 (2)) and was not binding upon him.
2. As the petition did not set out a cause of action against the defendant residing in the county in which the suit was brought, the court was without jurisdiction of the defendants residing in another county of this State.
DECIDED JUNE 23, 1954.
Daniel B. Scoggins brought suit in Fulton Civil Court against Doris and James Rivers, alleged to be residents of Crisp County, and against William B. Hill, alleged to reside in Fulton County. The plaintiff further alleged: "That the defendants James Rivers and Doris Rivers jointly own and operate radio station WTJH in East Point, Georgia, with William B. Hill; the said William B. Hill at all times herein mentioned was acting as a vice principal and alter ego of the two other named defendants, in that the said William B. Hill was the manager, in that he conducted the business of the two named defendants; his duties were numerous, in that he had charge of selling advertising, the hiring and firing of employees, and making of contracts of employment with the employees and doing each and every business transaction for the two named defendants in the operation of the said radio station." On July 1, 1951, the plaintiff entered into an oral contract of employment under which the defendants agreed to pay the plaintiff half of the gross proceeds received from commercial advertisers as a result of the plaintiff's performance of the duties of a radio announcer and disc jockey on the Dapper Dan Show. The plaintiff is known as Dapper Dan the Hillbilly Man; he announces commercials, plays records, and advertises the station. He began work on July 16, 1951, working one hour daily on six days of each week until December 20, 1952, when he was fired. He received no money from the defendants, and, during the period of his employment, the defendants received more than $14,600 from advertisers for advertisements on the plaintiff's program.
The plaintiff further alleged: When he entered into the contract and began work, Willard Belote was the station manager, performing the same services for James and Doris Rivers as Hill did. In July of 1952, Belote was relieved of his duties by James and Doris Rivers, and Hill became the station manager. The plaintiff then told Hill that he had not been paid, and Hill assumed personal responsibility with James and Doris Rivers for back salary already accrued by stating that, if the plaintiff would continue to work for the station and the defendants, he would see to it that the agreement entered into between the plaintiff and Willard Belote was carried out, and that the plaintiff would be paid. Hill further stated to the plaintiff: "If you will continue to work for the station, we (meaning Hill and the other defendants) will pay you all the money that is due you." Hill was benefited by the plaintiff's services in that they were valuable and brought in many sales and additional money, and Hill participated in the profits. The "radio station was operated for a pecuniary gain." The plaintiff, relying upon Hill's promises, continued his program until he was fired. Hill was acting in the direct prosecution of the business of James and Doris Rivers, as well as of his own business, and was acting within the scope of his authority. James and Doris Rivers acquiesced in and ratified the contract between the plaintiff and Hill. The suit was for an indebtedness of $7,300.
The defendants demurred upon the grounds that the petition did not set out a cause of action; that the contract was void by reason of the statute of frauds; that the court did not have jurisdiction over Doris and James Rivers, since a cause of action was not set out against Hill; and that the contract was void as to Hill.
The court ruled that Hill's promise was nudum pactum and barred by the statute of frauds, and that the court was therefore without jurisdiction of the nonresident defendants. The grounds of demurrer as stated were sustained. The plaintiff excepted.
The allegations of the petition show that the plaintiff was hired for an indefinite period by Doris and James Rivers, through their manager, Belote, in July of 1951. His compensation was to be half of the gross proceeds received by the station from advertisers as a result of the plaintiff's announcing and playing records. It is alleged that Hill became the station manager in July of 1952, and it is contended that he then assumed personal responsibility for the plaintiff's compensation by stating, in substance, "If you will continue to work for the owners, I will see to it that your agreement with them is carried out and that you are paid, and we will pay you all the money that is due you."
An agent is not liable for the breach of an employment contract made with him in his capacity as agent for a known principal, in the absence of an express undertaking on his part. Pearl Assurance Co. v. Bernath, 185 Ga. 737 (2) ( 196 S.E. 389); Pelotte v. Simmons, 41 Ga. App. 198 (4) ( 152 S.E. 310); Gill v. Tison, 61 Ga. 161; Lovelace v. Browne, 126 Ga. 802 (3) ( 55 S.E. 1041).
Granting that the form of Hill's alleged promise does not indicate that it was given only as that of an agent, and that Hill individually became a party to the contract, it appears that Hill was in effect a surety, since the owners, as the principal obligors, were alleged to have ratified the contract and so remained primarily liable for the plaintiff's pay. If Hill had paid the plaintiff, the owners would have been liable to reimburse Hill.
Contracts to answer for the debt of another must be in writing to be binding upon the promisor. Code § 20-401 (2). The owners were alleged to be liable for the services which the plaintiff was to perform in the future, which indicates that the plaintiff was working in fulfillment of his original contract with the owners, and not performing under a new contract made with Hill individually and on behalf of the owners. This also shows that the plaintiff's services were not rendered on Hill's credit alone, and that this part of Hill's undertaking was collateral to that of the owners and was within the statute of frauds.
A new and independent consideration moving to Hill is necessary to show that Hill's promise, to pay for the plaintiff's past services, was not collateral. See Ferst v. Bank of Waycross, 111 Ga. 229, 231 ( 36 S.E. 773); Thomason v. Pease Co., 47 Ga. App. 776 ( 171 S.E. 467); Grafton v. Nunnally, 17 Ga. App. 470 ( 87 S.E. 693); Restatement of the Law of Contracts, § 184. But the allegations of the petition do not show that Hill had a personal, immediate, and pecuniary interest in the plaintiff's continued performance of his duties, or that Hill was directly benefited thereby.
The consideration alleged is that the plaintiff's services were valuable and brought in sales and additional money, presumably to the owners of the station. Hill is alleged to have been benefited in that he participated in the profits. But, in the absence of allegations that there were profits — and, construed against the pleader, the allegation that the "station was operated for a pecuniary gain" is not an allegation that there were profits — or that Hill shared also in the losses, only a possibility of direct benefit to Hill is shown, and this is not a sufficient interest in the transaction on Hill's part to show that his undertaking to pay for the plaintiff's accrued compensation was original rather than collateral to that of the owners.
The plaintiff alleged that he performed his services, but since they were not of substantial benefit to Hill, this affords no ground for removing from Hill the protection of the statute. 49 Am. Jur. 803, Statute of Frauds, § 500.
As the petition failed to set out a cause of action against Hill, who resided in Fulton County, where the suit was brought, the court was without jurisdiction of the defendants alleged to be residents of Crisp County, and did not err in sustaining their demurrers. Jackson v. Norton, 75 Ga. App. 650 ( 44 S.E.2d 269); Walker v. Whittle, 83 Ga. App. 445 ( 64 S.E.2d 87); Crosby v. Calaway, 65 Ga. App. 266 ( 16 S.E.2d 155); Metcalf v. Hale, 42 Ga. App. 402 ( 156 S.E. 301); Southern States Life Ins. Co. v. Statham, 4 Ga. App. 482 ( 61 S.E. 886).
Judgment affirmed. Felton, C. J., and Quillian, J., concur.