dissenting.
In 1973 Hudson, at the insistence of top executives of Venture Industries, Inc., left a lucrative executive position of employment with another organization to work for Venture. No formal contract was ever executed, although a rough memorandum was prepared which was *35to be put into a written contract by the company’s legal counsel, but this was never done. Basically, Hudson was employed for a five-year period, a guaranteed three years, with an option to renew at the end of two years for the three remaining years, including salary and other benefits. After working for Venture for two years Hudson exercised his option by advising Venture, through its president, by letter confirming the terms of the oral agreement. This letter and the employment of Hudson for five years was verbally acknowledged by the president with particularity as to the terms of the employment agreement.
In late 1975, Edward James Doyle, III became the operating head of Venture (president and chairman of the board of directors), with full authority to hire and fire. Thereafter, Doyle fired Hudson. Whereupon Hudson sued Doyle and Venture in various counts for various amounts of damage to him as follows: for breach of contract, jointly and severally against each as a result of a conspiracy; tortious interference with his contract to wrongfully terminate him; wrongful termination due to ordinary negligence; false and fraudulent and negligent representations and promises to him resulting in damage to him; fraud and deceit; and for exemplary damages (aggravating circumstances) resulting from wrongful acts of the defendants in bad faith without regard for the consequences to plaintiff, as well as reasonable attorney fees.
After discovery, summary judgment was granted in favor of the defendants, and plaintiff appeals. Defendants first contend that at the time of plaintiff’s alleged damage, checks representing severance pay and accrued vacation pay were accepted and cashed by Hudson, resulting in an accord and satisfaction. They also contend Doyle was not involved in this matter at the time plaintiff was employed, hence there could be no breach of contract action as to Doyle. Other issues that defendants raised are that plaintiffs action for breach of contract is barred by the Statute of Frauds, no tort action can arise from the breach of the contract, and it does not give rise to an action for fraud and deceit against the defendants.
The majority here affirms the judgment granting *36summary judgment for reasons stated in two divisions. Division 1 is based on the theory that this being an oral contract, thelStatute'of Frauds applies'andthe contract was not in writing; and further there could be no fraud worked on the plaintiff. In Division 2 the majority holds that Doyle was at all times acting as the alter ego of the corporate defendant in terminating plaintiff, hence the breach of contract did not give rise to an action for tort, there was a negation of fraud, and the promises made were only prospective in nature.
To the opinion as written I cannot agree.
1. "In a contract of employment, the fact that the plaintiff employee has given up lucrative employment elsewhere in reliance on the contract will be enough, combined with actually entering upon the duties of the employment, to take the contract out of the statute of frauds. Alexander-Seewald Co. v. Marett, 53 Ga. App. 314 (3) (185 SE 589); Bagwell v. Milam, 9 Ga. App. 315 (4) (71 SE 684).” Norman v. Nash, 102 Ga. App. 508, 509 (3) (116 SE2d 624). Plaintiffs evidence is that he left a position paying $29,000 a year plus bonus and other fringe benefits and did actually undertake employment under an oral contract for two years prior to his dismissal in violation of the terms of the oral contract. Clearly, there was evidence showing that, the Statute of Frauds does not' apply.
The majority, relying upon Utica Tool Co. v. Mitchell, 135 Ga. App. 635 (218 SE2d 650), holds that the trial court did not err in granting summary judgment in favor of the defendant employer, basing this holding on its finding that the alleged oral contract involved here has not been taken out of the Statute of Frauds by part performance. See Code § 20-402. In Utica Tool Co. v. Mitchell, supra, plaintiff made preparations to undertake the employment offered in the alleged contract in that case but never did perform a substantial act essential to the performance of the duties of employment set forth in that alleged contract. This case upon which the majority relies is therefore inapposite on the facts. I would hold that the alleged oral contract has been taken out of the Statute of Frauds by the plaintiff employee’s having given up lucrative employment elsewhere and having actually *37entered upon the duties of employment pursuant to the oral contract. The plaintiff employee has shown such part performance as to take the contract out of the Statute of Frauds, and the trial court erred in granting summary judgment in favor of the defendant employer for this reason alone.
2. But I also am of the opinion that issues of fact also exist as to the averments of conspiracy and tortious interference with plaintiffs contract in order to wrongfully terminate him from his employment. This action was brought jointly and severally against the defendants. See Code §§ 105-1207, 105-1401; Luke v. DuPree, 158 Ga. 590 (124 SE 13); Nottingham v. Wrigley, 221 Ga. 386, 387 (144 SE2d 794). Compare Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 (50 SE 353); Bromley v. Bromley, 106 Ga. App. 606, 613 (127 SE2d 836).
3. The majority does not review the accord and satisfaction question. However, in the companion case, Ward v. Venture Industries, Inc., 147 Ga. App. 17, this issue was determined and holds that the evidence is insufficient to demand a finding of an accord and satisfaction as required to grant summary judgment. This statement is equally true in the case sub judice.
On summary judgment the evidence must be construed most strongly in favor of the party (plaintiff here) who is opposing the motion, and issues of fact remain for jury determination. Holland v. Sanfax Corporation, 106 Ga. App. 1, 4 (126 SE2d 442); Mathis v. R. H. Smallings & Sons, Inc., 125 Ga. App. 810 (189 SE2d 122).
For all of the foregoing reasons, I must respectfully dissent.
I am authorized to state that Chief Judge Bell and Presiding Judge Deen join in this dissent.