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WOFAC CORPORATION et al. v. HANSON; and vice versa.
49113.
49114.
STOLZ, Judge.
The plaintiff former agent's right to commissions was controlled by the express employment contract, which specifically excluded as a matter of law his recovery of commission for a contract for the procurement of which he had worked, but which was executed subsequent to both his termination and the extension of time granted by the defendant principal.
Action on contract. Fulton Civil Court. Before Judge Webb.
Hanson brought this action against his former principal, Wofac Corp., to recover under the first count commissions allegedly due him under the contract, for his work in procuring a contract for services for the defendant with Kingsport Press, Inc., and under the second count to recover on the theory of indebitatus assumpsit, quantum meruit, or money had and received. The defendant's and the plaintiff's appeal and cross appeal respectively from the denials of their motions for summary judgment, were certified for review. There is no dispute as to the facts.
The parties' employment contract provided for the payment of commissions to the plaintiff for "booking" business, which was not defined. Paragraph E (4) of the contract provided as follows: "Upon termination of this Agreement, except for breach by you, you or your estate shall be entitled to receive commissions, as set forth in this Agreement on projects commenced on or before the date of such termination, or on projects for which a purchase order or authorized letter of commitment has been received from the Client on or before the date of such termination, and which are subsequently performed. After the date of termination of this Agreement, no commissions shall be payable to you or your estate with respect to new contracts, extensions, extensions of multi-phase projects as defined in this Agreement, or repeat business of any kind, whether or not entered into with Clients with whom you may have at any time negotiated." (Emphasis supplied.)
The plaintiff's efforts to procure the Kingsport Press contract commenced in early 1970, and his final action in that regard was the formal presentation of the defendant's proposal on December 1, 1970. The defendant terminated the agreement with the plaintiff without cause, as authorized by the agreement, effective January 31, 1971. The notice of termination purported to amend the aforesaid paragraph E(4) of their contract "to include the following specific situation: If a purchase order or authorized letter of commitment is received from the Kingsport Press as a result of our proposal to them dated December 4, 1970, subsequent of [sic] the final termination date of your agreement but prior to February 28, 1971, you or your estate shall be entitled to receive commissions as set forth in your independent Representative Territorial Agreement dated June 1, 1967, for that specific program."
The defendant was not notified until June 1, 1971, to commence work on a subsequent proposal (substantially similar to the original proposal), which it did in July or August of 1971. After the plaintiff's termination and prior to June 1, 1971, Kingsport Press was reviewing and evaluating proposals from several other consulting firms also. The defendant's executive vice president, Bowler, deposed that their clients usually didn't accept proposals later than about 30 days after their being presented, and that if he lead known at the time he terminated the plaintiff that Kingsport Press would ultimately accept, he "supposed" that he would have provided for the plaintiff's commissions.
"There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise; and no agreement can be implied where there is an express one existing." Ramsey v. Langley, 86 Ga. App. 544, 549 (4) (71 SE2d 863). See also Davenport v. Pope, 96 Ga. App. 799 (101 SE2d 614). The evidence here conclusively shows that the plaintiff's right to recovery, if any, of commissions for contracts closed after his termination depends upon an express contract which specifically covers this situation.
"Construction of the contract is for the court unless, after application of all applicable rules of construction the ambiguity remains." Chandler v. Gately, 119 Ga. App. 513, 522 (167 SE2d 697) and cit. The evidence demanded a finding that the Kingsport Press contract was not executed, or a purchase order or authorized letter of commitment received, until after the plaintiff's termination. The plaintiff urges the construction o the term "projects" in the employment contract which would include the efforts, plans, designs, proposals, and negotiations leading up to the final agreement and contract, as well as the actual work performed subsequent and pursuant to the execution of the contract. This construction cannot be permitted, as it would eliminate the effect of the last sentence of paragraph E(4), and would entitle the plaintiff to commissions for merely commencing work on proposals which are ultimately accepted. While contracts, where the construction is doubtful, must be construed against the party drawing and executing them, "nevertheless, a contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe it as to reconcile its different parts and reject a construction which leads to contradiction, in order to ascertain the true intention of the parties, which is the real purpose of the judicial construction of contracts." Sachs v. Jones, 83 Ga. App. 441, 444 (63 SE2d 685) and cits.
Hence, under the employment contract itself, the plaintiff was not entitled to the commissions in question as a matter of law. The purported amendment to the contract in the notice of termination was consistent with our construction of the contract, and its efficacy would not be eliminated by a showing that the plaintiff did not ratify it, since it extended, rather than restricted, his rights under the original contract. "The express provision for liability within the time limited implies its exclusion thereafter." Kenney v. Clark, 120 Ga. App. 16, 18 (169 SE2d 357). Nor does the showing of what the defendant's officer "supposed" he might have done had he known what would transpire in the future, raise any factual issues. " 'Affidavits containing mere legal conclusions and allegations which would not be admitted into evidence present no issues of fact on a motion for summary judgment.'" Chandler v. Gately, 119 Ga. App. 513, supra, p. 518 and cits.; cf. North Springs Shopping Center v. Tustian, 229 Ga. 699 (194 SE2d 252).
Accordingly, the trial judge erred in denying the defendant's motion for summary judgment, and properly denied the plaintiff's motion for summary judgment.
Judgment reversed on the main appeal, affirmed on the cross appeal. Deen and Webb, JJ., concur.
Nall, Miller & Cadenhead, Gerald A. Friedlander, for appellee.
King & Spalding, Jack H. Watson, Jr., William A. Clineburg, Jr., for appellants.
ARGUED FEBRUARY 12, 1974 -- DECIDED APRIL 11, 1974 -- REHEARING DENIED MAY 7, 1974.
Friday May 22 12:41 EDT


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