Opinion
38255.
DECIDED MAY 12, 1960.
Complaint. Fulton Civil Court. Before Judge Parker. January 28, 1960.
Ben T. Beasley, Jr., for plaintiff in error.
Franklin B. Anderson, contra.
The trial court did not err in the rulings on the demurrers or in denying the motion for a new trial for any of the reasons assigned.
DECIDED MAY 12, 1960.
Thomas E. Mangle brought an action against the Southeastern Sports Car Center, Inc., to recover $4,825 principal. The petitioner alleged that the defendant owed him that amount for earned commissions; that on April 1, 1957, it was orally agreed that the plaintiff was to receive $6,900 per year for his services as general manager of the defendant corporation, plus 10% commission based on the profits of the corporation; that the agreement was reduced to writing; that the plaintiff became ill on December 1, 1957, and at the request of the defendant he took a thirty-day leave of absence; that the defendant agreed to pay his salary during this time and re-affirmed the annual commission agreement, stating that the plaintiff's salary would be mailed to his residence; that when the first check became due it was not sent to the plaintiff promptly, whereupon the plaintiff called the defendant and was informed by the defendant that the plaintiff was no longer employed with the corporation; that the defendant has failed and refused to pay the agreed salary and annual commission; that the corporation earned profits of $45,000 through November of 1957 with four months to go and that the profits would have exceeded $50,000; that the plaintiff earned $4,500 commission through the month of November, 1957, and that the defendant owed the plaintiff $575 salary for the month of January, 1958. The plaintiff prayed for judgment in the sum of $4,825. The record shows that the defendant filed general and special demurrers to the petition and the court entered an order sustaining two grounds of the demurrers giving the plaintiff ten days within which to amend. The plaintiff did amend within the time allocated. The defendant filed an answer and also renewed its demurrers to the two paragraphs which had previously been sustained and the petition was amended to conform. After renewal of all the demurrers the court overruled them on each and every ground. The case proceeded to trial and the jury found in favor of the plaintiff for the amount for which suit was brought. The defendant filed a motion for a new trial on the statutory grounds and thereafter amended by adding three special grounds. The court denied the motion for a new trial and it is to this judgment that the case is here for review.
The evidence shows substantially that the plaintiff was an employee of the defendant corporation. The plaintiff testified that he was to be paid $575 a month as a base salary and 10% of the profits over $50,000 per year; that the plaintiff was ill at least twice during the year 1957, claiming that he had overworked; that the plaintiff had borrowed some money against his earned bonuses; that the plaintiff went to Florida but got sick and came back to Atlanta and that from then on he was not paid anything because he was told that he no longer had a job there; that he had been working for the defendant corporation about eighteen months, when he became ill the last time; that on one occasion he went to Savannah and discussed a job with some friends there but that he did not take the job; that he spent approximately two weeks in Savannah on sick leave and was paid for that full time; that he was sick again and went to Florida; that on returning from Florida he found out that he was without a job. The plaintiff further testified that, after taking out what he owed the defendant corporation, he was still due $4,825 from the defendant which was unpaid at the time of the trial.
Florence Heery testified on behalf of the plaintiff that she was employed at the Southeastern Sports Car Center from May, 1956, until November, 1958, as a bookkeeper and payroll clerk; that she was present when Mr. Tom Downing, an official of the defendant corporation, and the plaintiff executed the contract which she saw, and the contract was put in an envelope, sealed, and then placed in the safe; that the contract set out the percentage the plaintiff was to receive for his efforts; that witness did not remember the exact percentages to be figured on each different amount; that Mr. Downing told her not to pay the plaintiff in November, 1958. The witness was indefinite about whether or not there were more than two contracts. She was of the opinion that the contract which was originally placed in the safe was on Packard Company stationery but the one which was produced at the trial was on plain paper. The witness testified that she thought the percentages on each of the contracts were the same.
Oscar Lawton Barber testified that he worked for the defendant corporation and that Mr. Downing had an oral agreement that he was to receive a $600 bonus each year but that he only received $50 bonus the first year and $50 "when I left."
John C. Sewell, a witness for the plaintiff, testified that he worked for the defendant corporation and that he had an oral agreement with Mr. Downing to receive a bonus but that he was never paid.
Martin Johnson testified that he was an employee acting in the capacity of a consultant for the defendant corporation and that, so far as he knew, the plaintiff's work was satisfactory while the plaintiff was working there; that he had never heard Mr. Downing complain of the plaintiff's work.
Mr. Tom Downing testified on behalf of the defendant corporation by stating that he was president of the defendant corporation; that he employed the plaintiff; that he recognized the paper presented to him at the trial as being the contract consummated between the defendant corporation and the plaintiff. He testified that the plaintiff came to him and "told me he was quitting just out of the blue." He testified that all his mechanics quit, "every one of them . . . they picked up their tools . . . and they all quit and sat down . . . gone out to what amounted to a strike, and I had a shop full of customers' cars . . . only way I could get them to go back to work was to get Mr. Mangle to come back." He testified that at that time he and the plaintiff further agreed that if the plaintiff left the company before the year ended he was not to get any bonus. This witness testified that "Mr. Mangle left on or about January 1, 1958."
There was other testimony from other witnesses as to how the bonuses were figured, as to loans having been made and the loans deducted from payments to the plaintiff, and as to the illness of the plaintiff at various times, but there was no concrete testimony from any source as to the payment of the amount for which suit was brought.
1. We have studied the evidence carefully and in view of the contract and the sales figures, it is our opinion that the evidence supports the verdict and the trial court did not err in denying the motion for a new trial as to the general grounds.
2. Special ground 1 assigns error because it is alleged that the court erred in admitting certain evidence over objections, this evidence being a monthly report which counsel for the defendant insists was not relevant to the issue before the court. The court ruled that, since other books of the defendant were not produced to reflect a picture of the profit and loss, the monthly statements were admissible. It seems that the records of Reynolds Reynolds, the defendant's auditors, were admittedly destroyed by the defendant. It was stipulated that the auditor's profit and loss statements were destroyed. In view of what appears in this special ground as a colloquy between counsel and the court, it does not appear to be reversible error for the court to have admitted the profit and loss statement into evidence. This special ground is not meritorious.
3. Special ground 2 assigns error because it is alleged that the court erred in failing to grant a motion to strike portions of the testimony of Mrs. Heery. There was colloquy in regard to this testimony out of the presence of the jury. We have read the evidence in its entirety and do not find that the testimony of Mrs. Heery as referred to by page number of the record is harmful to the movant. This special ground is not meritorious.
Special ground 3 assigns error because it is alleged that the court erred in failing to grant a nonsuit after the conclusion of certain of the plaintiff's testimony. This ground complains of the refusal to grant a nonsuit in a case where the general grounds of the motion for a new trial are insisted upon and for that reason this motion for a nonsuit cannot be considered. See Milligan v. Milligan, 209 Ga. 14 (2) ( 70 S.E.2d 459).
4. As stated hereinabove the general and special demurrers were renewed after the petition had been amended and counsel for the defendant especially renewed the special demurrers to paragraphs 5 and 13 (a) of the amended petition. Paragraph 5 of the amended petition reads as follows: "This schedule of commissions agreed upon was reduced to writing in memorandum form by petitioner and placed in defendant's safe, where same is at the filing of this suit." Paragraph 13 (a) reads as follows: "The written memorandum of the agreed commissions in petitioner's handwriting on deposit in defendant's safe which is referred to in paragraph five above." We cannot see that these two paragraphs which were added by amendment were subject to special demurrer. The plaintiff amended the petition in several respects and to our minds met the demands of the other special demurrers. We therefore conclude that the ruling of the trial court in regard to the special demurrers was correct. It is our opinion that the petition set out a cause of action and that the court properly overruled the general demurrer to the petition as amended.
The trial court did not err in the rulings on the demurrers nor in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend, Carlisle and Frankum JJ., concur.