Stewart & Co. v. Stephens, 7 Ga. App. 453

Stewart & Co. v. Stephens

7 Ga. App. 453 | Ga. Ct. App. | 1910

Lead Opinion

Hill, C. J.

(After stating the foregoing facts.)

While many questions are made in the voluminous motion for a new trial, and argued by counsel for the plaintiffs in error, yet we think there are only two which need to be considered and decided: *457First, did Stephens break his contract? Second, did the facts show an accord and satisfaction? If either result is shown by the facts, Stephens could not recover, and the verdict in his favor should be set aside. We do not think that under the evidence it can be fairly or reasonably contended that Stephens breached his contract. By the terms of the contract he was to be located for the season at Adrian, for the purpose of buying cotton; and in order to enable him to perform his contract he went to the expense of moving his family from Wrightsville to Adrian and renting a house in Adrian. He was not required, by the terms of his contract, to go to any other place; and if he did go at the request of Stewart & Co., he had a right to require them to pay the necessary expenses incident to such change of location. And this seems to have been at first the view which-Stewart & Co. entertained of the contract, for when Stephens went to Yidalia to work in the compress and found that the work was injurious to his health, they willingly consented to his returning to Adrian, and paid his expense account and hotel bill while in Adrian. When he was called upon by Stewart & Co., through their agent, England, to go to Swainsboro, he had the right to expect that Stewart & Co. would pay his expenses to Swainsboro and his board at Swainsboro; and when this reasonable expectation, based not only on the terms of his contract, but on the previous conduct of Stewart & Co., was not realized, he was entirely justifiable in returning to Adrian and in notifying Stewart & Co. that he had done so and was ready to continue in the performance of his contract at Adrian. When Stewart & Co. refused to pay Stephens’ expenses to Swainsboro, and notified him that they had no further use for his services, this amounted to a breach by them of their contract with him. This breach is shown not only by their refusal to pay the expenses which he had a right to expect they would pay, but by the explicit declaration, contained in their letter to him, that “we have no further use for your services.” Stephens did not acquiesce in this breach of the contract, but insisted that he had complied with his contract in every particular and was still willing to do so, and requested Stewart & Co. to point out to him in what particular he had violated the contract, and contended that, as to the complaint of his leaving Yidalia and Swainsboro, he was entirely justifiable, under the facts, in so doing. As to the act of Stephens in leaving Yidalia, this was expressly ap*458proved by Stewart & Co. While they may not have approved his act in leaving Swainsboro, we think, as above intimated, he was entirely justifiable in leaving, in view of the fact that they had refused to pay his expenses at that place, which he had a right to expect them to do, not only as a reasonable requirement by him under the contract, but also in'view of the fact that they had paid similar expenses at Yidalia. We therefore conclude that Stewart & Co. broke their contract with Stephens, and that, under the facts and the law applicable thereto, they were not justifiable in such breach. Baldwin v. Marqueze, 91 Ga. 404 (18 S. E. 309); 26 Cyc. 989.

Do the facts show an accord and satisfaction? This depends primarily upon the construction of the letter which Stewart & Co. wrote to Stephens on November 27, 1905, as follows: “We have checked over your expense account and find that we are due you $2.42, for which amount you can draw. You can also draw for $43.55 due you on salary up to the day you left Swainsboro. These drafts will be promptly protected when presented. We herewith consider our contract with you cancelled.” This letter should be construed in connection with the letter which Stephens had written to Stewart & Co. and to which the above-quoted letter was a reply. He wrote requesting them to send the amount which they considered they were due him for expenses and salary. The item of expenses was eliminated by the amendment to the petition, leaving only the question of salary. There was no dispute between the parties as to the amount of salary that was due him under the contract up to the day he left Swainsboro. Stewart & Co. authorized him to draw on them for the amount of his salary which they admitted to be due at the time he left Swainsboro. The permission to draw this salary which had been earned and which was due was not coupled with any condition that he would, on account of the payment of this salary, release them from the contract. They owed him this amount of salary whether he had released them from the contract or not. 'There was no. dispute about the amount of salary, and nothing in controversy about which there could arise ' any settlement by way of accord and satisfaction. There was nothing in the letter and nothing in the circumstances to put Stephens on any notice that the payment by Stewart & Co. of the amount of salary which was due him was conditioned upon his releasing them from their contract. The payment of this salary was not a con*459sideration for the cancellation of the contract, nor was payment made upon such a condition. Stewart & Co. had previously notified Stephens that they had no further use for his services. To permit them to set up that the mere payment by them of the amount which they admitted to be due him up to the time when they discharged him, and when there was no difference or dispute between the parties as to the amount due, was an accord and satisfaction, would be to allow them to take advantage of their own wrong. In other words, to discharge a faithful employee, and, when he accepted payment for what was due him up to the time of discharge, to plead such acceptance as an accord and satisfaction, would be a very unjust perversion of the underlying principle of accord and satisfaction. Finlay v. Ludden, 105 Ga. 367 (31 S. E. 180). The words contained in the letter which authorized Stephens to draw for the salary due him up to the time of his discharge,— “We herewith consider our contract with you cancelled,” — could not reasonably be construed as meaning cancellation because of the payment of the money due him, or because Stewart & Co. had conceded anything to him in the payment; nor was there anything in these words to put him on notice that he could only accept payment of the money on condition that he agreed with the statement that the contract was in fact cancelled, but they were simply a notice to him that Stewart & Co. considered the contract cancelled by the payment of his salary up to the time he was discharged. The facts clearly distinguished this case from those decisions which hold that retaining a check which accompanies a statement that the check is payment in full, or payment in part, of an account which is disputed, on condition that it is in settlement of the whole claim, amounts to an accord and satisfaction. Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134); Garbutt Lumber Co. v. Wilcox, 6 Ga. App. 53 (64 S. E. 391). We think it perfectly clear that the payment of this money as salary due to Stephens by Stewart & Co. up to the time of his wrongful discharge was not coupled with any condition that he should accept it as payment in full. Erom a careful consideration of the evidence and the law applicable thereto, we are clearly of the opinion' that Stephens did not break his contract, and that in accepting what was admittedly due him he did not accept it as an accord and satisfaction; and we also think that the contract was broken by the defendants with*460out justification, and that the jury was fully authorized in finding a verdict for the balance of the salary due Stephens under the terms of his contract. Judgment affirmed.

Concurrence Opinion

Russell and Powell, JJ.,

concur dubitante upon the holding as to whether there was an accord and satisfaction.