The judge, by consent trying the case without a jury, erred in finding for the defendant, and in overruling the motion for new trial.
DECIDED OCTOBER 28, 1940. W. C. Bryant sued F. Doyle Hayes in a justice's court for thirty per cent. of certain commissions received by the defendant from the sale of tickets as agent for the Southeastern Greyhound Lines Inc., the claim being based on a written contract, the pertinent parts of which are as follows: "This agreement, made and entered into this the 31st day of May, 1939. . . witnesseth: That whereas on this date W. C. Bryant has sold, transferred, and delivered to F. Doyle Hayes all equipment, fixtures, and furnishings used by W. C. Bryant in the operation of a certain filling-station, known as Bryant's Service Station on the northwest corner of the intersection of Hamilton Street and Waugh Street in the City of Dalton, Whitfield County, Georgia, for which sale of personality the said F. Doyle Hayes has paid W. C. Bryant the cash consideration agreed upon between the parties; and whereas W. C. Bryant in the operation of the said filling-station business had, as an incidental operation in connection therewith, the ticket agency of and for the Southeastern Greyhound Lines Incorporated, for which agency he was entitled to a commission of 10% of net sales of all tickets sold by said lines through him as such agent; now therefore, collaterally to said sale and as a part of the consideration thereof, F. Doyle Hayes agrees and binds himself to pay unto the said W. C. Bryant a sum equal to 30% of all commissions collected by him as agent succeeding the said W. C. Bryant, and further agrees that should W. C. Bryant retain such agency that he, F. Doyle Hayes, shall operate and continue said agency in connection with the operation of such filling-station business and pay over to the said W. C. Bryant 30% of all net commissions of said Southeastern Greyhound Lines Incorporated, ticket sales." On appeal to the superior court the judge, by consent, trying the case without a jury found for the defendant. The plaintiff excepted to the overruling of his motion for new trial.
On the trial the plaintiff testified as follows: "I live at Dalton, *Page 441 Georgia, and until May 31, 1939, operated a filling-station at the northwest corner of the intersection of Hamilton Street and Waugh Street under the name of `Bryant's Service Station.' I leased the building and the premises, but owned the equipment, fixtures, supplies, and stock necessary to the operation of the filling-station. . . I had a stock of tires, tubes, and other merchandise of that sort necessary in the filling-station. In connection with the operation of the filling-station I had the agency for the Southeastern Greyhound Lines Incorporated. I sold tickets for passage over the lines of that company, and received freight, baggage, etc., for transportation over their lines. The operation of this agency was conducted at the filling-station, and I had to keep a waiting-room there for the convenience and comfort of the passengers, and had to keep available parking space for the buses of the company. For the operation of the agency I received a commission of ten per cent. of the gross ticket sales receipts. On May 31, 1939, I entered into a contract with F. Doyle Hayes for the sale of the equipment, fixtures, and stock located at the filling-station and used in connection with the operation of the filling-station and the maintenance of the ticket agency. We also entered into a contract with reference to the agency for the bus line in connection with the filling-station sale. When we entered into the contract I surrendered to him possession of the premises and all the equipment connected with the filling-station and the ticket agency. I also surrendered to him the agency for the bus-line company, and he entered into possession of the premises and immediately began operation of the station and the agency of the bus-line company. He received commissions of ten per cent. of the gross ticket-sales receipts from the time he received the station from me up until November 1, 1939, at which time he quit paying me the thirty per cent. of the ten per cent. commission according to our contract. He has not paid me anything since that time. When we agreed on a trade we took stock of what I had, and finished our trade the next morning. Hayes was to pay for everything I had there. He paid me $844.57 in cash, paid a note I owed at the bank of $650, and gave me his note for $125. That check which you hold, dated May 31, 1939, in amount of $844.57 is the check he gave me, and the note which you hold, marked paid, in amount of $650, is the note which he paid. We went up to the bank after dinner on May 31, and paid *Page 442 the note, and then signed our contract of sale. I did not have any written contract of agency with the Southeastern Greyhound Lines. My contract with them was verbal. I just knew the men who operated the line, and I went to see them to get them to stop their buses at my station, and I went to a good bit of trouble to get the agency there. They told me that as long as I operated the station and provided them with a nice clean place to stop they would let me have their agency and pay me a commission on sales. I did not have any definite contract with them as to time, I was to keep the agency as long as they stopped at that station, and I operated it for them. My contract with the bus company was not for any definite period of time. It was all indefinite, and I was to be their agent as long as the station was operated properly and the bus company received the service at that station and had a good place to stop. It was a part of the consideration of the sale to him that I was to get thirty per cent. of the commissions which Hayes received, either operating the agency in my name, or in his name as my successor."
The plaintiff introduced in evidence the contract sued on. It was agreed that if the defendant was liable the amount of commissions due for the months of November and December, 1939, was $68.15. The defendant introduced in evidence a contract between him and the Southeastern Greyhound Lines Inc., dated July 21, 1939, by the terms of which the company appointed F. Doyle Hayes as ticket agent for the company at Dalton, Georgia, and agreeing to pay him 10% of his gross ticket sales as commission for the maintenance of the agency. The defendant introduced also the note and the check identified by the plaintiff. There was no further evidence. 1. It is contended that the contract sued on was not binding on the defendant because of lack of mutuality, and because the defendant's promise to pay a percentage of the commissions is indefinite as to time. The plaintiff testified: "It was a part of the consideration of the sale to him that I was to get thirty per cent. of the commissions which Hayes received, either operating the agency in my name, or in his name as my successor." *Page 443 The contract also recited that as a part of the consideration of the sale Hayes agreed to pay the commission of thirty per cent. Such testimony and such a provision in the contract, in the absence of evidence to the contrary, necessarily mean that the agreement to pay the commissions was made at the time of the sale of the equipment, and that the sale was a consideration for the promise to pay the commissions. 1 Williston on Contracts, 508, § 142. If the agreement to pay the commissions was not in contemplation of the parties at the time of the sale, then a later promise to pay them would be without consideration, and the promise would not have been a part of the consideration of the sale. It would have been competent for the defendant to show that what the contract and the plaintiff called a consideration was in fact not a consideration in law, because the promise to pay the commissions was based on a past consideration which in law would be no consideration; but there was no such evidence, and that contract and the testimony, in the absence of attack, must stand for their face value and on their legal import. If the agreement to pay the commissions was intended at the time of the sale as a part of the consideration for the sale, the sale was a valid consideration for the promise to pay the commissions, and it is immaterial that the plaintiff did not sell the agency to the defendant and that he was not instrumental in procuring it for the defendant.
2. The contract sued on is a unilateral contract under which the consideration flowing from the plaintiff had already been supplied, and stands upon the same footing as a bilateral contract fully performed by the plaintiff. In such a case it is not necessary that the promise to pay the commissions be definite as to time, if the time can be made certain by extrinsic facts. 1 Williston on Contracts, 134, § 47; Id. 346, § 103F.
The court erred in finding for the defendant, and in overruling the motion for new trial.
Judgment reversed. Stephens, P. J., concurs.