Opinion
40264.
DECIDED SEPTEMBER 4, 1963.
Action on contract. DeKalb Civil and Criminal Court. Before Judge Morgan.
Lindsey Langford, Wendell C. Lindsey, for plaintiff in error.
Greer, Hall Morris, Richard G. Greer, contra.
A contract, which states that it supersedes all previous contracts between the parties, does not supersede a separate contract arising from an offer made by one of the parties before such contract is executed but accepted by the other party after such contract is executed.
DECIDED SEPTEMBER 4, 1963.
Security Life Trust Company sued Harold H. Armstrong who had been an agent of the plaintiff to recover the amount allegedly due under a "career financing program." The petition had attached thereto as an exhibit a letter dated February 9, 1961, signed by the defendant which stated: "I hereby agree that all amounts advanced to me under the career financing program, less any commission credits due me, shall become a debt due the above companies and agree to repay such debt immediately upon demand by the above companies." The defendant, in his answer, denied that he was indebted to the plaintiff and further alleged that the agreement referred to in the plaintiff's petition was void because it was superseded by a later agreement of March 10, 1961, which read in part as follows: "It is understood and agreed should any indebtedness by the agent to the companies be outstanding at the termination of this agreement, all of, or so much thereof as may be necessary, of the renewal commissions accruing under this provision to the agent or his beneficiary shall be applied to retirement of said indebtedness . . . this agreement supersedes all previous agreements whether oral or written between the companies and agent." On the trial of the case before the court, without the intervention of a jury, the above exhibits to the pleadings were introduced in evidence as well as the letter to the defendant dated March 10, 1961, which informed him that "his contract to represent the Security Insurance Companies had been approved effective February 27, 1961, and that his request for financing assistance in the amount of $120.00 per week had also been approved." Other evidence as to the amount of the advances and the commissions earned was also introduced. The trial court rendered a judgment for the plaintiff and thereafter the defendant's motion for new trial on the usual general grounds only was overruled and the defendant now assigns error on such judgment adverse to him.
"Where a principal advances money to his agent on a drawing account against his commission to be earned as a salesman for selling merchandise, and his commission does not amount to the sum advanced, the employer can not, in the absence of an express or implied agreement, or promise to repay any excess of advances over the commissions earned, recover such excess from the employee. 2 Am. Jur. 229; Richmond Dry Goods Co. v. Wilson, 105 W. Va. 221 ( 141 S.E. 876, 57 ALR 31, 33); 2 CJ 787; 39 CJ 153. And see Fried v. Portis Hat Co., 41 Ga. App. 30 ( 152 S.E. 151).' Smith v. Franklin Printing Co., 54 Ga. App. 385 (2) ( 187 S.E. 904) See also Valdosta Roofing c. Co. v. Lawrence, 89 Ga. App. 168 ( 79 S.E.2d 10); and Foster v. Union Central Life Ins. Co., 103 Ga. App. 420 (1) ( 119 S.E.2d 289)." Roxy Furniture c. Co. v. Brand, 106 Ga. App. 104, 105 ( 126 S.E.2d 295).
The contract signed by the parties on March 10, 1961, included language which related to any indebtedness which might be owed the company by the defendant at the time the agency relationship was dissolved. Therefore, it covered the same subject matter as the letter to the plaintiff which was attached to the petition (under the terms of which letter the defendant would be indebted to the plaintiff for all sums advanced less commissions, etc., earned) and if accepted by the plaintiff prior to the execution of the agency contract was merged into it by the express terms of such contract, and under the decision of this court in Foster v. Union Central Life Ins. Co., 103 Ga. App. 420, supra, the terms of the agency contract would not bind the defendant to repay advances in excess of commissions earned.
The letter of February 9, 1961, was not a contract however, which would be merged into the agency contract unless the defendant's application for financial assistance was accepted prior to the time the agency contract was executed. The letter to the defendant from the company, dated March 10, 1961, and introduced in evidence, informed the defendant that his agency contract had been approved effective February 27, 1961, and that his request for financial assistance had also been approved. Such letter did not show that the financing assistance had been approved prior to, or even simultaneously with, the approval of the agency agreement, and the only other documentary evidence as to the order in which the agreements or contracts were entered into was the evidence as to the first check issued to the defendant under the financing assistance agreement which check was issued on March 14, 1961, after the agency agreement was executed on March 10, 1961. The plaintiff presented oral testimony that the agency contract was entered into before the financing assistance agreement was approved, while the defendant testified that the financing agreement was approved by the plaintiff before the agency contract was executed.
The agency contract did not, as a matter of law, supersede and void the express promise of the defendant to repay the advances made against commissions. The evidence authorized the judgment for the plaintiff and the trial court did not err in overruling the defendant's motion for new trial.
Judgment affirmed. Frankum and Jordan, JJ., concur.