108 S.E.2d 761
37600.Court of Appeals of Georgia.
DECIDED APRIL 23, 1959.
The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction. The agreement between parties upon which suit is brought is clear, unambiguous, requires no interpretation, and contains no provision such as would debar the present suit or subject the plaintiff’s petition to general demurrer.
DECIDED APRIL 23, 1959.
Accounting, etc. Savannah City Court. Before Judge Alexander. January 8, 1959.
R. J. Riley filed a suit for accounting and monies due him from M. O. Seckinger, d/b/a Seckinger Plumbing Company, alleging the monies were due him as an employee of Seckinger Plumbing Company under an employment contract which was attached to the petition and marked Exhibit “A”. The contract reads:
“This agreement made this 25th day of April 1955 between R. J. Riley and M. O. Seckinger, Jr., whereas R. J. Riley will be guaranteed a minimum salary of $65 per week and expenses fluctuating to a salary of $125 per week and expenses.
“Settlement of salary is to be determined on a reasonable basis at the end of each fiscal year based on the amount of net profits produced by R. J. Riley.
“It is further agreed that after salary deductions R. J. Riley is to draw a bonus of 10% on the net operation of his efforts.
“This agreement is based on retroactive adjustments against R. J. Riley caused by any further adjustment in figures, such as, re-negotiation, income tax adjustment by the government, job cost adjustment, and any other expenses affecting the net income of M. O. Seckinger, Jr.
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“It is further agreed that any adjustment for any leases caused by R. J. Riley will be brought forward into the succeeding years.
“In the event that this agreement is dissolved by death or by mutual agreement, it is agreed that no settlement will be made by M. O. Seckinger, Jr., until such time as the jobs or activities of R. J. Riley are resolved in a complete status with all accounts receivables paid into M. O. Seckinger, Jr.
“In the event of the death of R. J. Riley, M. O. Seckinger, Jr., will settle all adjustments in salaries and payment of commissions to R. J. Riley’s heirs and assigns of his estate.
R. J. Riley
“April 25, 1957 [April 25, 1955?] M. O. Seckinger, Jr.”
The petition alleged in part that until June 30, 1957, R. J. Riley drew his minimum salary of $65 per week and that at the end of the fiscal year June 30, 1957, Seckinger failed to make an accounting to Riley as to the net profits and failed to pay Riley the amounts owing to him; Riley continued to work for Seckinger, and during this period made repeated demands upon Seckinger for an accounting and the payment of monies owing to him; Seckinger failed to give an accounting and refused to pay Riley in full the monies owing him; in addition to his weekly salary of $65 Riley had received only $1,300 as bonus on commission, and he had reason to believe that he was entitled to the sum of $5,400, but this amount could not be exactly determined until an accounting was made by Seckinger and Riley asked for an accounting thereof; Riley was forced to terminate his employment on March 15, 1958, by the acts of the defendant in failing to pay the earnings in the employment agreement; at the time Riley terminated his employment, there were enumerated jobs under construction on which he was due commissions.
The amendment set out in detail the jobs, the value of each and the commissions due the plaintiff.
The defendant filed renewed general and special demurrers to the petition as finally amended, and upon these demurrers being overruled he excepted only to the ruling on the general demurrer.
Connerat, Dunn, Hunter, Cubbedge Houlihan, Malcolm Maclean, Spencer Connerat, Jr., for plaintiff in error.
John R. Calhoun, contra.
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QUILLIAN, Judge.
The only assignment of error is that the trial judge erred in overruling a general demurrer to the petition. The petition set forth a cause of action and was not subject to the demurrer if according to its allegations the plaintiff Riley was entitled to an accounting with the defendant Seckinger and to a judgment for the sum earned while in the defendant’s employ. The contract attached to the petition as an exhibit, clearly and explicitly stipulated that at the end of each fiscal year during the period of the plaintiff’s employment there would be a settlement between the parties. This provision is contained in paragraph 2 of the contract. The sixth paragraph of the contract provides that in the event the relationship which the contract created was dissolved by death or mutual consent or by mutual agreement a settlement could be had only upon certain conditions.
The two clauses of the contract conferred upon the plaintiff the right to an accounting under distinct and different circumstances; they are not in conflict and neither in any way modifies or restricts the meaning of the other. In short, each of the clauses stands as though the other were not in the contract, and there is no logical way to construe them together.
That there is no connection between the two clauses of the contract is made obvious and clear by the language employed in each, and this is still more apparent when the contract is read as a whole.
The allegations of the petition that the plaintiff was employed under the terms of the contract; that for a period of more than two years he had served the defendant in the manner provided by the contract; that he had, in rendering the services, earned a considerable sum of money; that the defendant had breached the contract by refusing to account to him at the end of the fiscal year for the money due him, set forth a cause for an accounting and a recovery of such sum as the accounting would show him to be entitled to.
It is equally as apparent that paragraph 6 of the contract does not allude to a settlement to be had upon a dissolution of the contractual relation of the parties except by death or by mutual agreement. It cannot be construed as restricting or nullifying
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the plaintiff’s right to a general accounting in the event the relationship of the parties terminated by the breach on the part of one of the parties accepted by the other.
Judge Nesbit years ago made the wise observation, “The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction.” Neal v. Moultrie, 12 Ga. 104, 110. The pronouncement referred to statutes, but it is applicable in the interpretation of contracts.
In the case of Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302 (99 S.E.2d 95) it is held: “But it is equally well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance, and this rule applies equally as well to insurance contracts as to any other contract.” See supporting citations.
Where, as here, there is no conflict or inconsistency in two clauses of a contract, both will be allowed to stand as written.
Where an employer refuses to settle with his employee for wages or salary due for services rendered in compliance with the contract of employment, the employee may by an appropriate action require the employer to settle with him, and recover the amount, which under the terms of the contract of employment he is entitled to have for his services.
The employer’s refusal to pay an employee the wages or salary he has earned, is a breach of the contract of employment and tantamount to wrongful discharge of the employee.
In addition to the right to sue for damages, the employee by appropriate action may compel the employer to account for and pay him the amount he had earned when the breach of the contract occurred.
The petition in this case set forth a cause for an accounting and recovery of the amount due the plaintiff for services rendered prior to the time the defendant refused to settle with him. It follows that the judgment overruling the general demurrer must be affirmed.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
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