Opinion
36107.
DECIDED APRIL 3, 1956. REHEARING DENIED APRIL 17, 1956.
Action on contract. Before Judge Shaw. Fulton Superior Court. December 19, 1955.
Frank Love, Jr., Powell, Goldstein, Frazer Murphy, for plaintiff in error.
Haas, White Douglas, Hamilton Douglas, Jr., contra.
The court erred in sustaining the general demurrer to the petition and in dismissing the petition as amended.
DECIDED APRIL 3, 1956 — REHEARING DENIED APRIL 17, 1956.
Mrs. William Van Houten (hereinafter called the plaintiff) filed a suit in the Superior Court of Fulton County against Standard Federal Savings Loan Association (hereinafter called the defendant) alleging a contract of employment. General and special demurrers were filed to the petition and renewed after each of the two amendments. The trial court sustained the general demurrer and did not rule on the special demurrers. From the order sustaining the general demurrer the case is before this court for review.
The petition alleges in paragraph 1 the jurisdiction of the subject matter. Paragraph 2 alleges that the defendant was indebted to the plaintiff in the sum of $37,671.30, together with lawful interest on said amount. Paragraph 3 alleges employment of the plaintiff by the defendant. Paragraph 4 alleges authority of the secretary of the defendant corporation to enter into and execute contracts between said corporation and individuals for the performance of personal services to be rendered to the defendant corporation. Paragraph 5 as amended reads: "Your petitioner has been employed by the defendant since May, 1943, at a salary of $100.00 per month, and on January 1, 1944, the defendant, acting through its agent J. L. R. Boyd entered into a contract in writing by which petitioner was named assistant secretary of the defendant corporation, and provided that in addition to the $100.00 per month which petitioner was already receiving, petitioner should receive an additional $5.00 per month for each increase of $100,000 in assets of the defendant corporation as fixed by the directors thereof. Copies of said contract are attached hereto as exhibit `A', and by reference made a part hereof. It was understood and agreed by both parties to the contract that the computation of petitioner's salary would continue to be by the month.
"It was further understood and agreed by the parties to the contract that the additional compensation of $5.00 for each increase of $100,000 in the assets of the defendant corporation would be computed and your petitioner's salary adjusted at the end of each calendar year, at which time petitioner was to receive compensation for the difference in the amount petitioner had actually received as salary during the year and the amount that she was entitled to receive under the contract. However, she was never paid in accordance with the contract nor was she given an accounting of what she was actually due by the defendant corporation although she continually demanded such an accounting and demanded that she be compensated as provided in the aforesaid contract."
Paragraphs 8 through 24 inclusive set up the respective increases in assets of the corporation, and allege amounts due to the plaintiff by reason thereof. We will set out the remaining paragraphs: "25. Your petitioner never at any time during the period January 1, 1944, until October 1, 1952, acquiesced in or agreed to the payment to her of any amount less than that called for by the contract of January 1, 1944, but instead, petitioner constantly and repeatedly on innumerable occasions during said period objected to the defendant's payment to her of less than the amount due her under said contract, and petitioner constantly and repeatedly made demand upon the defendant for the full amount due, petitioner making said demands upon defendant's authorized agent, J. L. R. Boyd.
"26. When petitioner made said objections and demands to the said agent of the defendant, J. L. R. Boyd, he would stall your petitioner, and put her off by promising her that the defendant would take some action or that he, as the defendant's agent, would `look into it,' and by stating that he would get results, but in spite of said promises by the said Boyd, defendant never took such action and never paid petitioner the amount due her, but instead, stalled and delayed and procrastinated and put the petitioner off.
"27. Your petitioner has made demand upon the defendant for the full payment of the amount due her and the defendant has failed and refused to pay said amount."
The alleged contract identified in the petition as exhibit "A" reads as follows: "Effective this date you are carried on our rolls as assistant secretary — in lieu of assistant to the secretary and on permanent status. This places you on a supervisory and executive basis and under me as deputy to perform my duties in connection with collections from closings — and insurance. The base pay is $100.00 plus $5.00 each increase of $100,000.00 of assets as fixed by the directors — as such you have no fixed hours and aid me in selecting your aides. J. L. R. B."
We have set forth the facts in the instant case somewhat in detail. We are of the opinion that this case is controlled largely by Brazzeal v. Commercial Casualty Ins. Co., 51 Ga. App. 471 ( 180 S.E. 853), wherein this court said: "This was a contract to begin in praesenti, for an indefinite period, terminable at will, and the employee thereunder was suing on the contract for the amount of compensation due him, based upon services actually performed by him up to the time of his discharge, and not for damages or for compensation for services not performed or for any breach of contract. In such a case it was not necessary that the plaintiff sue on a quantum meruit for services actually performed. The judge erred in dismissing plaintiff's petition on general demurrer." See also Anderson, Clayton Co. v. Mangham, 32 Ga. App. 152 ( 123 S.E. 159); Aspironal Laboratories v. Rosenblatt, 34 Ga. App. 255 ( 129 S.E. 140); Bedell v. Berwick, 142 Ga. 146 ( 82 S.E. 564).
Code § 66-101, cited by counsel for the defendant, Odom v. Bush, 125 Ga. 184 ( 53 S.E. 1013), and Southern Savings Bank v. Dickey, 58 Ga. App. 718 ( 199 S.E. 546), show no cause to sustain the contention that the court correctly sustained the general demurrer and dismissed the plaintiff's petition. We might here properly remark that the gist of the contract between the parties was made with J. L. R. Boyd, who from the record in this case was in charge of the operating of the business of the defendant insofar as the relation with the plaintiff was concerned. The employment agreement between Boyd and the plaintiff was conclusive as to the transaction before us.
The court erred in sustaining the general demurrer and in dismissing the petition.
Judgment reversed. Townsend and Carlisle, JJ., concur.