Loftis Bros. v. Creel

100 S.E. 452, 24 Ga. App. 229, 1919 Ga. App. LEXIS 514

• Court: Court of Appeals of Georgia
• Decided: October 9, 1919
• Docket: 10442
• Status: Published

Opinion

Bi.oodworth, J.

The petition in this ease does not set out a cause of action, and the judge erred in overruling the oral motion to dismiss it.

Judgment reversed.

Broyles, O. J., and hulee, J., concur.

An oral motion to dismiss the petition was made by the defendant, and the court rendered the following judgment: “Hpon motion to dismiss because no cause of action is set forth, it appearing that money on sales made by the plaintiff had been collected before the bringing of this suit, it is considered, ordered, and adjudged that the motion to dismiss be and the same is overruled.” To this judgment the defendant excepted. It was contended by counsel for the defendant that as the alleged contract did not fix any time for its duration, it could be terminated at any time at the will of either party; that no breach of contract was shown; and that the plaintiff was not entitled to compensation after the termination of his employment, or to commissions on amounts not collected. Counsel cited: Clark on Contracts (3d ed.) 430; Bearden Mercantile Go. v. Madison Oil Go., 138 Ga. 703; Bentley v. Smith, 3 Ga. App. 343 (4); Hearn v. Gower, 1 Ga. App. 365 (3). Counsel for the plaintiff contended that “the right of the salesman to compensation became fixed whenever a sale was made by him according to the contract, subject to be divested by failure of the purchaser to make payment on a credit sale, his compensation becoming due and payable whenever payment was made by the purchaser;” and that, it being admitted by counsel for the defendant that collections were made by the defendant before the filing of the suit, as “will appear by reference to the order overruling the demurrer,” the plaintiff “was entitled to recover some amount.”

Rosser, Slaton, Phillips & Hophins, for plaintiff in error. W. H. Terrell, contra.