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Attachment. Before Judge Shaw. Fulton Superior Court. January 5, 1955.
1. Assignments of error in the bill of exceptions on exceptions pendente lite are not here considered, where neither the bill of exceptions nor the exceptions pendente lite sent up as a part of the record of the case reveal with sufficient clarity which portions of the five-page order of the court are being excepted to, and where such order, in its entirety, is favorable to the plaintiff, in that in substance it overrules general demurrers of the defendant to the petition.
(a) Similarly, the assignment of error on the denial of the plaintiff's motion "to strike defendant's demurrers because not filed within a reasonable time" is not here considered, for the reason that the record reveals five sets of demurrers by the defendant, and it is not clear to which demurrer the motion to strike was directed.
2. The transfer of this case from the Supreme Court to this court was a decision on the 6th ground of the amended motion for new trial contrary to the plaintiff in error's contentions, in that it constituted a judgment that--when the word "day" was omitted from a contract of employment, but both sides admitted by their pleadings and by stipulations to that effect that the word "day" should have been incorporated in the contract--the equitable relief of reformation of the contract sought by the pleading of the plaintiff was no longer in issue.
3. A custom or usage of trade cannot be set up to vary the terms of a written and unambiguous contract, when such custom would contradict the terms of the contract. Code 20-701 (3); Colfax Gin Co. v. Buckeye Cotton Oil Co., 24 Ga. App. 610 (1) (101 S. E. 697). Accordingly, the evidence as to trade custom offered by the plaintiff and excluded by the court, on which error is assigned in the 13th special ground, was inadmissible as tending to vary the terms of the written contract.
4. A provision in a contract of employment, as follows: "In the event of the termination of this agreement for any reason, it is agreed that salesman shall not be entitled to any commissions on orders on file at the time of the termination here of and on which shipments shall not have been made by Luden's," is not doubtful or ambiguous. Accordingly, the rulings of the trial court excluding testimony of the plaintiff as to his interpretation of the contract and his motives in signing it were without error, contrary to the contentions of special grounds 14 and 15 of the amended motion for a new trial.
5. The failure of the defendant to give the plaintiff written notice of intention to terminate the contract between them one day in advance, in accordance with its terms, constituted a breach, this provision requiring a forfeiture of the plaintiff's earned commissions and subjecting the contract to strict construction. Accordingly, the plaintiff was entitled to treat the contract as breached and recover his earned commissions.
James T. Hubert filed an action in the Superior Court of Fulton County against Luden's, Inc., seeking commissions allegedly due him as a commission salesman for the defendant company. The action was in three counts. The first sought alleged unpaid commissions under the contract between the parties, count 2 was a Jack Jones form of account, and count 3 was on quantum meruit, alleging a rescission of the contract by the defendant and seeking the reasonable value of services rendered during the life of the contract. The defendant filed general demurrers which were overruled.
The defendant answered denying the allegations of the petition, and seeking to recover a judgment for alleged overpayments on the salesman's drawing account. General demurrers to the answer were overruled. The parties agreed to try the case before the court without a jury, at which time it was stipulated: that Hubert was employed by the defendant corporation under the contract pleaded in the petition, that the word "day," which had been omitted from one paragraph of the contract, should be read into the same so as to make that paragraph read as follows: "This agreement shall become effective as of the 26th day of January, 1950, and shall continue in full force and effect until termination by either party, by giving the other written notice of intention to terminate one [day] in advance"; that Hubert worked from January 26, 1950, until August 16, 1950, during which time he sold orders which were delivered and for which payment was received by Luden's subsequently to August 16, 1950, for merchandise on which he would have been entitled to net commissions of $8,250 if he were still a salesman of the company, and which amount plaintiff is entitled to recover if he prevails in this case. It was also stipulated that the defendant, in the event of recovery by it, would be entitled to a judgment in the amount of $771.53, representing overdrafts by the plaintiff against the drawing account provided in the contract.
After hearing evidence, the court entered a judgment in favor of the defendant for $771.53. The plaintiff made a motion for new trial on the general grounds which, as twice amended, contained 12 special grounds. Error is assigned on the judgments refusing to strike certain demurrers of the plaintiff to the answer, and denying the motion for a net trial as amended.
Townsend, J. 1-4. Headnotes 1 through 4 require no elaboration.
5. The essential issue to be decided in this case is whether or not the contract of employment between the plaintiff and the defendant was terminated in accordance with its terms, or, if not, what effect the defendant's discharge of the plaintiff had upon his claim for unpaid commissions. As set out above, the contract contained a clause that either party might terminate the same "by giving the other written notice of intention to terminate one day in advance." It also contained a provision that, in the event of termination, "salesman shall not be entitled to any commissions on orders on file at the time of the termination hereof and on which shipments shall not have been made by Luden's." The commissions sought were for orders on file on which shipments had not been made, but which were subsequently shipped and paid for. The plaintiff's contention that his work was highly seasonal, and that the bulk of his orders taken during his employment were for later delivery, is borne out by a letter received by the plaintiff from the defendant's vice-president after the contract was signed, agreeing to increase commissions on deliveries until September 30, which letter then stated: "This will take you through the hot summer months, Jimmy, and your Christmas stuff will be rolling by October, and you will then be all set and in good shape."
On August 14, 1950, the defendant, by its vice-president, wrote a letter, which the plaintiff received on August 16, containing the following: "Further to our conversation at Birmingham, and further to our conversation on the telephone, we regret to advise you that we must stand pat on our decision to discontinue your services effective at once." The letter contained instructions for the storing of equipment, which the plaintiff followed, and, except for forwarding some mail orders to the company thereafter, on which commissions are not here claimed, he did discontinue his services after that date.
We also recognize the general rule, as applied in this State, that forfeitures, although not favored, are not altogether prohibited, and that where, under the terms of a contract, a forfeiture is clearly agreed upon, it will be upheld. Golden v. National Life &c. Ins. Co., 189 Ga. 79 (5 S. E. 2d 198, 125 A. L. R. 838). We also agree with the holding of the Supreme Court of Alabama in Oates v. Lee, 222 Ala. 506 (133 So. 44), to the effect that, while the court could not understand why parties in their right mind should enter into such contracts, nevertheless, if a contract of employment on a commission basis provided for discharge without notice, and also provided that, in the event of discharge, the salesman should not be entitled to compensation for orders not completed and full deliveries made, the terms of such contract would be upheld. This case involves a situation where, as to the commissions sought, the defendant company procured a large volume of orders subsequently filled by it due to the plaintiff's efforts, and on which the plaintiff had completed everything required of him in order to procure the sale, and had forwarded the orders to the company so that the only thing remaining to be done was an act on the part of the defendant itself. Consequently, the right to the commissions absolutely vested in the plaintiff at that time, subject only to two contingencies--that the order might be canceled before shipment, in which event under the terms of the contract the salesman would lose his right thus acquired to the commissions, or that the contract of employment might be canceled according to its terms before the shipment and payment there for took place. This contract was not canceled according to its terms, although it was undoubtedly canceled. The defendant having notified the plaintiff by letter of its termination of the contract in a manner not provided for by the contract (that is, "effective at once," and without giving the one-day notice of intention to terminate), the plaintiff had a right to treat the letter as a breach of the contract, which it was, and thereupon himself to rescind the contract, which he did by returning the defendant's property and ceasing to take further orders for it, while at the same time insisting that the contract had not been legally terminated by the defendant. As stated in Code 20-907: "In some cases a party may rescind without the consent of the opposite party, for nonperformance by him of his covenants; but this can be done only when both parties can be restored to the condition in which they were before the contract was made." Restoration of the status of the parties here involved the returning of the defendant's property and crediting the defendant's account with overpayments on the plaintiff's drawing account, and it further involved payment by the defendant to the plaintiff of commissions already earned by the latter prior to the breach and rescission. See also Beck v. Thompson & Taylor Spice Co., 108 Ga. 242 (33 S. E. 894); Shubert v. Speir, 201 Ga. 20 (1) (38 S. E. 2d 835); Manley v. Exposition Cotton Mills, 47 Ga. App. 496 (170 S. E. 711), to the effect that, where an employer breaches a contract of employment, the employee may sue on quantum meruit to recover the value of the services so performed; or he may maintain an action to recover damages for the loss sustained by the breach. Of course he may maintain both such actions for a single recovery by setting out his differing legal theories of recovery under separate counts of the same petition. Pacific Mutual Life Ins. Co. v. Caraker, 31 Ga. App. 707 (4) (121 S. E. 876). An attempt to discharge an employee in a manner not contemplated thereby is certainly a fundamental breach of the contract. Whether the employee was in fact harmed by failure to give the very short notice required is not here involved, the question being whether the defendant employer can insist upon a forfeiture clause in the contract when it has not complied with the terms of the contract under which such forfeiture clause may be invoked. Forfeitures are not favored, and are subject to a very strict construction. Prothro v. Walker, 202 Ga. 71 (42 S. E. 2d 114); DeLamar v. Fidelity Loan &c. Co., 158 Ga. 361 (123 S. E. 116); Pearson v. George, 209 Ga. 938 (77 S. E. 2d 1); Aetna Life Ins. Co. v. Palmer, 159 Ga. 371 (125 S. E. 829). In consequence, it must be held that, under a strict construction of the contract, the failure of the defendant to cancel the same in accordance with its terms was in itself such a breach of the contract as would prevent the defendant from insisting upon the forfeiture provision. "Where a forfeiture is dependent upon the giving of a certain written notice, if it be such as can be enforced, it must appear that the notice was given in compliance with the contract both as to time and contents, and that the default occurred." Georgia R. & Bkg. Co. v. Haas,
127 Ga. 187, 190 (56 S. E. 313, 119 Am. St. R. 327, 9 Ann. Cas. 677). Under the authority of Johnson v. Kahrs, 199 Ga. 365 (34 S. E. 2d 503), this rule is applicable where, under the terms of the contract of employment, written notice of termination is required, not merely for the purpose of allowing the employee time in which to locate other employment, but where other affirmative rights under the contract are also forfeited by the employee on its termination. The withholding of commissions already earned would amount to a forfeiture of such commissions which the defendant has no right to insist upon unless, by strict compliance with the contract on its part, some right arising therefrom entitles it to do so. There was no such compliance in this case, and no such right. Under the terms of this contract, the defendant could for no reason terminate it without the giving of the one-day notice. The defendant having attempted to do so, and the plaintiff having shown by uncontradicted evidence the contract, the breach, and the stipulation as to the amount which the plaintiff would receive if entitled to recovery, a judgment in his favor is demanded. The remaining special grounds of the amended motion for new trial are not dealt with eo nomine, as in general they raise the questions decided in this division of the opinion.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Sidney Haskins, contra.
C. J. Mathews, Head & Hanna, for plaintiff in error.
Saturday May 23 03:21 EDT

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