113 Ga. App. 13 | Ga. Ct. App. | 1966
This was a suit to recover compensation allegedly due the plaintiff under the terms of a written contract of employment executed by the plaintiff and the defendant em
The defendant testified that the plaintiff accepted these new terms as to his remuneration under the contract and continued in his employment until November 8, 1963, when the defendant terminated the employment relationship completely. The plaintiff testified that upon being informed of these new provisions by the defendant he reminded the defendant that the parties had a written contract. The evidence shows that the plaintiff was paid $250 as the “draw” for one week prior to October 27, 1963, and that after that date he was given a check for $195.80 which, according to the defendant, represented the total earnings of the plaintiff on a commission basis after October 27, 1963. Payment on this check was stopped, however, by the defendant.
At the conclusion of the evidence the trial judge who had heard the case without the intervention of a jury entered judgment in favor of the plaintiff in the amount of $1,428, this sum representing the amount of compensation due the plaintiff under the terms of the original agreement for the period from October 17, 1963, to October 27, 1963, and 30 days thereafter, less the amount of compensation already paid the plaintiff under the contract. The appeal is from that judgment, it being contended by the defendant that the evidence demanded the finding that the parties had mutually departed from the terms of the original agreement as to the plaintiff’s remuneration and that the plaintiff was not entitled to any additional compensation from the defendant when calculated on a commission-only basis as provided in the new agreement.
2. The trial court sitting as the trior of fact in this case was authorized to find that the purported departure from the terms of the original contract was unilateral in intent and not mutual and that the action on the part of the defendant in attempting to cancel certain provisions of the contract and substitute new ones in their place merely constituted the exercise by the defendant of his right to cancel the contract upon the giving of 30 days notice. Accordingly, the trial court was authorized to give the plaintiff credit for this period of time in computing the compensation due him under the original contract and the judgment of the court was not erroneous for any reasons enumerated.
Judgment affirmed.