47 Ga. App. 401 | Ga. Ct. App. | 1933
E. Y. Scott brought suit by attachment in September, 1928, against the Powell Paving Company, alleging in his declaration that said company had made with him a parol contract, on July 16, 1927, to work for said company, beginning August 1, 1927, for a term of twelve months at and for the sum of $225 a month, and that without cause said company, on December 23, 1927, terminated said contract, which termination resulted in injury and damage to plaintiff in a named sum. The defendant company in its answer denied that it had made any contract for a set time with the plaintiff and alleged that its contract of hiring was by the month. The first trial of this case resulted in a verdict for the plaintiff, and the case came to this court. See Powell Paving Co. v. Scott, 41 Ga. App. 194 (152 S. E. 309). The judgment refusing a new trial was reversed on the ground that the verdict was not authorized by the evidence, the evidence as to the length of time of hiring being too vague and indefinite. When the case went back to the trial court the plaintiff amended its petition by striking July 16 as the date on which the contract was made and alleged that the contract of hiring was entered into on August 1, 1927. On the second trial the court directed a verdict for the defendant, and on a writ of error this court reversed that ruling, for the reason that the plaintiff was not precluded from a recovery merely because his testimony given at the former trial, which was introduced in evidence by the defendant, was contradictory to the evidence given by him in the case then on trial. The court ruled that the probative value of this testimony was for the jury, and that the court erred in directing the verdict.. Scott v. Powell Paving Co., 43 Ga. App. 705 (159 S. E. 895). The case was tried a third time and the plaintiff obtained a verdict for the full amount sued for. The defendant’s motion for new trial was overruled and the matter is again before this court for determination.
Heaclnote 2 needs no elaboration.
Due to the fact that we hold that the statute of frauds was not properly pleaded it was immaterial whether the plaintiff proved his contract as made on July 16 or August 1. In a suit on an oral contract the date on which it is alleged the contract was made is not a descriptive averment and a slight variance between the date alleged and the date proved on the trial will not be held to be fatal. See, in this connection, Williams v. Johnson, 8 Ga. App. 651 (70 S. E. 89). The evidence for the plaintiff was that the contract alleged to have been made between the parties was that he was to be hired for the term of 12 months from August 1, at the rate of $225 per month. The evidence of the defendant was to the contrary. We are of the opinion that there was sufficient evidence upon which the jury could find that a parol contract for a definite period of time was made between the plaintiff and the defendant. The jury by their verdict apparently held the same opinion. ’ The court, therefore, did not err in overruling the motion for new trial.
Judgment affirmed.