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Action on account. Fulton Civil Court. Before Judge Bradford.
The evidence was sufficient to sustain the action of the trial judge, sitting without a jury, in finding for the plaintiff and entering judgment in accordance with such finding.
Appellee, Southeastern Personnel, Inc., an employment agency, brought this action on account against appellant, Paradies & Company, alleging that defendant owed plaintiff the sum of $1,620 for services rendered in the placement of one Harry Niebruegge. Defendant filed its defenses: (1) that the complaint failed to state a claim upon which relief could be granted, (2) that credit was not rendered to it nor did it have any contractual relationship with plaintiff, but rather that plaintiff had entered into a contract with the said Harry Niebruegge for payment of such services and that the charges, if owing, were the obligation of said Niebruegge, and (3) that it was not indebted to plaintiff in any sum whatsoever. An additional defense was filed by defendant at the time of trial to the effect that the alleged contract between plaintiff and defendant was not in writing and was barred by the Statute of Frauds.
The case came on for trial before the court, sitting without a jury. Plaintiff's witness, Clement Chandler, Jr., financial placement manager of plaintiff, testified that on March 1, 1970, he received a telephone request from James Paradies, of defendant, for a comptroller, and that Mr. Paradies agreed to pay the employment fee. Mr. Paradies in his testimony denied an agreement to pay the employment fee, but stated that he said the fee would be worked out with the applicant. He also testified that he advised the applicant that he must be employed six months before defendant would assume payment of the employment fee. In response to the March 1, 1970, telephone conversation, Mr. Chandler stated that he sent defendant a resume on Mr. Niebruegge, and that the applicant went to defendant's business for an interview, but was not employed at that time. On April 11, 1970, defendant made an offer of employment to Mr. Niebruegge, and Mr. Niebruegge was to start employment June 1, 1970.
Between the date of the offer by defendant to Mr. Niebruegge of employment and June 1, 1970, a difference arose between plaintiff and defendant about the employment fee. Plaintiff's witness, Mr. Chandler, testified that defendant and plaintiff were not in agreement as to the terms of payment, that he advised the applicant, Mr. Niebruegge, to contact defendant to see if the matter could be resolved between themselves. Mr. Chandler also testified that it was his understanding that Mr. Swearingen, of plaintiff, and defendant had reached an agreement concerning the fee prior to the applicant's accepting employment, but he could not state what the agreement was, but that it was his "understanding" that defendant was to pay the fee. Mr. Swearingen, of plaintiff, did not testify.
The responses of plaintiff by Mr. Swearingen to several of defendant's interrogatories were read into the record wherein Mr. Swearingen stated: that prior to the applicant beginning his employment on June 1 the matter concerning payment of the fee had not been settled, and that defendant would not commit itself as to the fee; further, that the applicant attempted to have defendant honor the alleged agreement prior to beginning work, but failed to do so, and that the conditions were not acceptable to plaintiff.
Mr. Niebruegge reported to work June 1, 1970. There was a conflict as to whether the terms of the fee had been resolved. The applicant worked a total of two and one-half months and was discharged. The applicant was unable to state whether Mr. Paradies told him that they would pay the fee only if he worked out.
A written contract was entered into between plaintiff and Mr. Niebruegge wherein the applicant agreed to pay the commissions for plaintiff's obtaining employment for the applicant. This written contract was in effect at the time of the trial and had not been rescinded or revoked. It was the regular business practice of plaintiff to take a written contract of this type from an applicant for a job to enforce payment of its commissions, and it was the practice of plaintiff to have all applicants sign a contract of this type before they were sent out on interviews. There was no other evidence as to the date of execution of the contract except the date of March 25, 1970, under the applicant's name. Plaintiff's witness, Mr. Chandler, could not explain why a written contract with the applicant was required obligating the applicant to pay the commissions, if the fee was to be paid by defendant.
At the conclusion of the evidence a judgment was entered for the plaintiff. The defendant appealed and the case is here for review.
1. The appellant contends the evidence does not support the judgment. There was evidence for the plaintiff that: there was in fact an understanding between the parties as to the terms of the oral agreement and that the appellant affirmed his agreement to pay the commission; any disagreement between appellant and appellee was not over the amount of commission to be paid, but over the time at which it would be paid; any dispute, if there was one, occurred after Mr. Niebruegge had already accepted employment with appellant, but had not yet reported to work; the dispute was resolved before Mr. Niebruegge reported for work.
This together with the other evidence was sufficient to authorize the trior of fact to find that there was a valid enforceable oral agreement between the parties. Luckie v. Max Wright, Inc., 90 Ga. App. 243 (1) (82 SE2d 660).
2. The defendant argues that the contract was void because it was an oral agreement within the Statute of Frauds. The evidence authorized a finding that the plaintiff performed his portion of the contract and thereby rendered the Statute of Frauds inapplicable. Thompson v. Hudson, 76 Ga. App. 807 (47 SE2d 112); Cooper v. E. Constr. Co., 116 Ga. App. 690, 694 (158 SE2d 305).
3. The defendant also contends that the contract was void because it was an oral promise to answer for the debt of another. A finding that the agreement between the plaintiff and defendant was an original obligation rather than a promise to answer for the debt of another was authorized. Wortham v. Sinclair, 98 Ga. 173 (2) (25 SE 414). Also, the plaintiff's financial manager testified the terms of the contract were different from the one signed by Niebruegge.
4. The remaining contention of the defendant is that under the contract that Niebruegge signed the defendant would only be liable for one-fifth of the fee because Niebruegge was employed by them for less than six months. However, Mr. Chandler, a witness for the plaintiff testified that the contract with the defendant was different from the one Niebruegge signed, because it was "a fee-paid position" and that the employer is liable for the entire fee if the employee works for him for more than thirty days. He further testified that he discussed this arrangement with Mr. Paradies, the defendant's vice president, during their initial discussion. The judgment was therefore authorized.
Judgment affirmed. Jordan, P. J., and Evans, J., concur.
Raborn L. Davis, William Boyd Lyons, for appellee.
Shoob, McLain & Jessee, Marvin H. Shoob, Christopher D. Olmstead, for appellant.
Friday May 22 15:28 EDT

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