Arby's, Inc. v. Cooper

Thompson, Justice,

dissenting.

The bonuses which Arby’s promised to pay Cooper were based on a formula, a part of which was fixed (e.g., length of service, number of employees managed) and a part of which was left to the discretion of Arby’s president. Each year, Cooper met with Arby’s president who applied the formula, exercised his discretion, and told Cooper the amount of his bonuses. In that way, Arby’s gave Cooper a bonus in 1986 and 1987; it promised him a $60,000 bonus in 1988 and a $75,000 bonus in 1989; and it made a partial payment of $35,000 toward the 1988 bonus.

Because the exact amount of the bonuses could not be ascertained until the discretion of Arby’s president was exercised, Cooper’s claim for unpaid bonuses was unenforceable as long as that discretion was not exercised. See Christensen v. Roberds of Atlanta, 189 Ga. App. 289 (375 SE2d 267) (1988). However, we must look at the contract at the time enforcement was sought by Cooper. Why? Because an indefinite contract may become definite through the subsequent words and conduct of the parties. Steinemann v. Vaughn & Co., 169 *243Ga. App. 573, 576 (313 SE2d 701) (1984).

Decided March 13, 1995 Reconsideration denied March 30, 1995. Gorby & Reeves, Martha D. Turner, Michael E. Fisher, for appellant. Rubin & Wildau, Martin H. Rubin, for appellee.

Looking at the contract at the time Cooper sought enforcement, we see that while the exact amounts of the bonuses could not be determined originally (since they were based, in part, on the exercise of discretion), the exact amounts of the bonuses became definite through the subsequent words and conduct of Arby’s president. Id.; see 17A CJS 364, Contracts, § 361 (if agreement leaves compensation for services to be determined by party for whom they are performed, subsequent determination of compensation is binding when made in good faith). It follows that the promises to pay the bonuses are binding and enforceable.

I am authorized to state that Justice Hunstein joins in this dissent.