188 Ga. 412 | Ga. | 1939
The Court of Appeals certified three questions in this case, the first question being as follows: “Is an oral contract of employment 'entered into in the year 1934 for the remainder of that year, which further provides that said contract of employment should continue from year to year thereafter unless notice of intention to terminate said contract for any succeeding year be given by either' party 90 days prior to December 31 of the preceding year, within the statute of frauds as being an ‘agreement . . that is not to be performed within one year from the making thereof’ (Code, § 20-401, subsection 5), so that such employee can
It seems that no similar question relating to contract of employment has ever before been decided either by this court or by the Court of Appeals of this State. So far as the courts of other jurisdictions have dealt with like questions, the decisions are not altogether reconcilable. On principle as well as what appears to be the greater weight of persuasive authority, we are of the opinion that the question here propounded should be answered in the affirmative; that is to say, that the statute of frauds is applicable. Tinder the Code, § 61-102, “Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol.” On construction of this statute it has been held that such a contract is enforceable even though it is made before the year begins. Steininger v. Williams, 63 Ga. 475; Neely v. Sheppard, 185 Ga. 771, 785 (196 S. E. 452); Butler v. Godley, 51 Ga. App. 784, 787 (181 S. E. 494). Contracts of employment, however, except contracts with overseers, are within the statute of frauds if they are not to be performed within one year “from the making thereof.” Code, § 20-401 (5). Accordingly, a contract of employment for a period of one year, to begin at a future date, is subject to the statute of frauds and required to be in writing. Kelly v. Terrell, 26 Ga. 551; Hudgins v. State, 126 Ga. 639, 643 (55 S. E. 492); Bentley v. Smith, 3 Ga. App. 242 (2) (59 S. E. 720); Bagwell v. Milam, 9 Ga. App. 315 (4) (71 S. E. 684); Williams v. Garrison, 21 Ga. App. 44 (2) (93 S. E. 510); Morris v. Virginia-Carolina Chemical Corporation, 48 Ga. App. 702 (173 S. E. 486).
The agreement here under consideration not only covered the remainder of the year 1934, but further provided that “said contract . . should continue from year to year thereafter, unless
Whether or not a contract for a term longer than a year but subject to termination by either party within a year from the original agreement should be distinguished from a contract for a year but subject to extension or renewal beyond that period, and whether also a distinction should be made between' a contract containing a condition precedent as to its continuance and one containing a condition subsequent as to that feature (Code, § 20-110), the present agreement as applied to years after 1934 could not be sustained upon any theory that might result from such distinctions. By its express terms it was to continue for more than a year from its date in 1934, and even for an indefinite number of years, unless it was terminated by notice. This was a condition subsequent, in the nature of a defeasance provision, and did not prevent the contract as originally made from being one for more than a year. The contract was not merely for an indefinite period which might be terminated in less than a year; and therefore the instant case should be distinguished from cases like Brazzeal v. Commercial Casualty Insurance Co., 51 Ga. App. 471 (180 S. E. 853), and Reynier v. Associated Dyeing & Printing Co., 116 N. J. L. 481 (184 Atl. 780, 104 A. L. R. 1102). Counsel for the plaintiff employee rely on the statement in 27 C. J. 188, § 119, to the effect that<lWhere an oral contract of employment' for one year contains
It is said for the employee that the situation here presented is somewhat analogous to a tenancy from year to year; and that, although a tenancy for a period longer than a year is required to be in writing, this court has held that a tenancy from year to year does not have to be in writing. Springfield Fire & Marine Insurance Co. v. Price, 132 Ga. 687 (4), 697 (64 S. E. 1074). See also Butler v. Godley, supra. The distinction noted at the outset of this opinion might be a sufficient answer to this argument; but we may call attention to the fact that in the case of landlord and tenant, an oral contract is binding only to the end of the first year, and that for each succeeding year the contract is renewed, as of the beginning'of the year, by acquiescence. In Roberson v. Simons, 109 Ga. 360 (34 S. E. 604), it was held: “Where land is rented to a 'tenant for one year at a stipulated rental, and after the expiration of the term the tenant, without further contract, remains in possession and pays the rental annually at the agreed rate, a tenancy from year to year is created.” As shown in the opinion in that case, the rule is based upon the theory that if there is a lease for a year, and if by consent of both parties the tenant continues in possession afterwards, “the law implies a tacit renovation of the contract,” a principle which has heretofore been noticed in the course of this opinion.
We do not construe the question propounded by the Court of Appeals as embracing any inquiry as to whether the instant agreement may have been removed from the operation of the statute of frauds by part performance; and accordingly no opinion is expressed or intimated upon that subject. This construction of the question accords .with the position taken by counsel on each side, as nothing was said on the latter question in any of the briefs filed in this court. Answer in affirmative.