Opinion
73580.
DECIDED MARCH 11, 1987. REHEARING DENIED MARCH 31, 1987.
Action on contract. Lumpkin Superior Court. Before Judge Henley, Senior Judge.
Paul Webb, Jr., William C. Gentry, Philip S. Coe, for appellant.
J. Nathan Deal, for appellee.
Appellee initiated an action to recover for appellant's alleged breach of a "franchised contractual relationship." At trial, appellant moved unsuccessfully for a directed verdict and the case was submitted to a jury. The jury returned a verdict in favor of appellee. Judgment was entered on the jury's verdict and the trial court denied appellant's subsequent motion for judgment notwithstanding the verdict. Appellant appeals, enumerating as error the denial of its motions for directed verdict and for judgment n.o.v.
1. The evidence admitted at trial, construed most favorably for appellee, showed that the "franchised contractual relationship" consisted of an oral agreement whereby appellee was to serve as the distributor for appellant's dairy products in a designated geographic area. Although appellee contends that his distributorship was exclusive and "permanent," it is clear that, as a matter of law, it was for an indefinite period and terminable at will and that appellee therefore had no viable claim for appellant's alleged "wrongful termination" of the relationship. The Statute of Frauds would render appellee's alleged oral contract for a "permanent" distributorship unenforceable. "Such a contract must be in writing." American Standard v. Jessee, 150 Ga. App. 663 (1) ( 258 S.E.2d 240) (1979). Furthermore, even if appellant could demonstrate that the Statute of Frauds would not otherwise bar the enforceability of his "permanent" distributorship, "the contract is nevertheless for an indefinite hiring and for that reason is unenforceable. `A contract for permanent employment has been held to be a contract to continue indefinitely, and terminable at any time by either of the parties.' [Cit.]" Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (1) ( 208 S.E.2d 583) (1974).
Appellee had "no written contract of employment and was, thus, an employee terminable at will. In the case of an employee terminable at will, there can be no cause of action for wrongful termination. [Cit.]" Shannon v. Huntley's Jiffy Stores, 174 Ga. App. 125 (2) ( 329 S.E.2d 208) (1985). "[A] hiring indefinite as to time is terminable at the will of either party and creates no executory obligations. [Cits.]" Lowe v. Royal Crown Cola, 132 Ga. App. 37, 40-41 (1) ( 207 S.E.2d 620) (1974). See also Loy's Office Supplies v. Steelcase, Inc., 174 Ga. App. 701 ( 331 S.E.2d 75) (1985). Accordingly, insofar as appellee asserted a "wrongful termination" claim, appellant's motion for a directed verdict should have been granted and the trial court erred in denying the motion for judgment n.o.v.
2. However, simply because appellee had no viable "wrongful termination" claim, it does not necessarily follow that he had no viable claim whatsoever based upon his oral contractual relationship with appellant. A writing would be a threshold requirement to the enforceability of any executory elements of appellee's alleged distributorship relationship, but not as to any of the executed portions. "The provisions of [the Statute of Frauds] do not extend to . . . cases: Where there has been performance on one side, accepted by the other in accordance with the contract." OCGA § 13-5-31 (2). See also OCGA § 11-2-201 (3) (c) which provides that the Statute of Frauds does not render a contract for the sale of goods unenforceable "[w]ith respect to goods for which payment has been made and accepted or which have been received and accepted . . . ." Thus, the Statute of Frauds would have no application in cases involving "a contract to begin in praesenti, for an indefinite period, terminable at will, and the employee thereunder [is] suing on the contract for the amount of compensation due him, based upon services actually performed by him up to the time of his discharge, and not for damages or for compensation for services not performed or for any breach of contract. In such a case it [is] not necessary that the plaintiff sue on a quantum meruit for services actually performed." (Emphasis supplied.) Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471-472 (180 S.E. 853) (1935). See also Spindel v. Nat. Homes Corp., 110 Ga. App. 12, 15 ( 137 S.E.2d 724) (1964); Trade City G.M.C. v. May, 154 Ga. App. 371, 372 (2) ( 268 S.E.2d 421) (1980); Wood v. Dan P. Holl Co., 169 Ga. App. 839, 840 (2) ( 315 S.E.2d 51) (1984).
In addition to his non-viable claim for wrongful termination, appellee was apparently also advancing a claim for unpaid consideration that was due him under the contract as it had been executed. Appellee presented evidence that, in the course of the relationship, appellant orally agreed that the price at which it had made its dairy products available to him in the past had been to high and that, as the result, appellee would be afforded a "credit" against his future purchases. Appellant's Statute of Frauds defense would not be viable as against enforcement of the alleged oral "modification." See generally Dan Gurney Indus. v. Southeastern Wheels, 168 Ga. App. 504, 505 (2) ( 308 S.E.2d 637) (1983). Likewise, there was sufficient evidence of consideration for appellant's alleged agreement to modify the contract price of its previously sold goods. See generally Hans Godo Frabel, Inc. v. Brennan's of Atlanta, 151 Ga. App. 379 ( 259 S.E.2d 649) (1979); Giant Peanut c. Co. v. Long Mfg. Co., 129 Ga. App. 685, 687 ( 201 S.E.2d 26) (1973). Accordingly, the trial court did not err in denying appellant's motion for a directed verdict as to appellee's viable non-executory claim based upon the oral "modification" of the terms of the distributorship.
3. For the reasons discussed in Division 1, the trial court erred in failing to grant appellant's motion for a directed verdict or for judgment n.o.v. as to appellee's "wrongful termination" claim. For the reasons discussed in Division 2, the trial court correctly denied appellant's motions for a directed verdict as to appellee's "modification" claim. However, the verdict returned by the jury does not indicate whether it was based upon the viable or the nonviable claim. Under these circumstances, the denial of the motion for judgment n.o.v. as to appellee's "wrongful termination" claim is reversed with direction that judgment be entered for appellant and the denial of the motion for judgment n.o.v. as to the "modification" claim is reversed with direction that a new trial as to that claim be held. See OCGA § 9-11-50 (d). "A new trial must be had because it can not be determined from the jury's verdict on which count it was based." Perry v. Poss, 86 Ga. App. 169, 174 (1) ( 71 S.E.2d 283) (1952). "Since `it is impossible to determine whether part or all of the award was [authorized] . . . the case must be reversed . . . and a new trial had' solely as to the issue of the recovery by appellee. . . based upon the [modification claim]. [Cit.] It is so ordered." Sanders v. Brown, 178 Ga. App. 447, 453 (5) ( 343 S.E.2d 722) (1986).
Judgment reversed with direction. McMurray, P. J., and Pope, J., concur.