Section applies after discharged servant had entered upon duties.

- This section applies after the servant had actually entered upon the performance of the duties undertaken and was discharged. Putney v. Swift, Murphy & Co., 54 Ga. 266 (1875).

Section inapplicable if servant never permitted to serve.

- This section is not applicable if A and B contract that A shall serve B as a clerk for four months at a specified rate per month and B refused, on application of A, to permit A to enter on the work. A has a right to recover, not A's four months' wages, but the damages which have come to A from B's breach of contract. Putney v. Swift, Murphy & Co., 54 Ga. 266 (1875).

Section inapplicable to permanent tenure.

- This section does not deal with an employment when the employee has permanent tenure. City Council v. Hydrick, 126 Ga. App. 611, 191 S.E.2d 563 (1972).

Action under section is ex contractu.

- Employee's suit for damages on account of a breach of contract by discharge is an action ex contractu. Cason v. Tye, 9 Ga. App. 325, 71 S.E. 593 (1911).

Cognizable agency contracts must refer to legal rights and duties.

- Contracts of agency, to be cognizable in law, must, like other agreements, have reference to the assumption of legal rights and duties, as opposed to engagements of a mere civic or social character, or of such other nature as to exclude monetary values. Huckeby v. Smith, 42 Ga. App. 719, 157 S.E. 234 (1931).

Cognizable agency contracts must have monetary value at law.

- In order to constitute a valid contract, the intention of the parties must refer to legal relations, so that the courts may take cognizance of it, and it is generally said that the test of this quality of the contract is that the intention of the parties must relate to something which is of a monetary value in the eye of the law. Huckeby v. Smith, 42 Ga. App. 719, 157 S.E. 234 (1931).

Accrual of right of action when contract treated as continuing.

- If the employee elects to treat the employment contract as continuing after wrongful discharge, the right of action as to the last installment of the employee's salary does not accrue until expiration of the stipulated term of employment. Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443, 164 S.E.2d 283 (1968).

Employee has six years to bring action on written contract.

- If the employment contract is in writing, the employee has six years after the expiration within which to bring an action. Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443, 164 S.E.2d 283 (1968).

Action brought during term may include recovery to end.

- Although an action for breach of a contract of employment is brought before the term of hiring has expired, the recovery may embrace all the damages down to the expiration of the term, if the trial is held after the whole of such damages become susceptible of definite proof - that is, after the term expired. Georgia, Fla. & Ala. Ry. v. Parsons, 12 Ga. App. 180, 76 S.E. 1063 (1913).

Quantum meruit available as remedy.

- If there exists a written contract which is broken, one of the remedies for the breach is quantum meruit, that is, in treating the contract as rescinded. Gilbert v. Powell, 165 Ga. App. 504, 301 S.E.2d 683 (1983).

Recovery properly limited to quantum meruit.

- There being no allegation in the petition and nothing in the evidence to show that the term of service had expired and that the servant was suing to recover the servant's entire damages or that the servant was suing for any special injury for a breach of the contract, the court did not err in treating the plaintiff's case as one based upon quantum meruit and in charging the jury accordingly. Silverthorne v. Arkansas S.E. Ry., 142 Ga. 194, 82 S.E. 551 (1914).

Measure of damages.

- When an offended party sues for the breach of a contract, the measure of the party's recovery is, prima facie, full payment at the contract rate, but the defendant may mitigate the damages by showing that the plaintiff, by the exercise of ordinary care and diligence, could have rendered the next loss less than that amount. Mimms v. J.L. Betts Co., 9 Ga. App. 718, 72 S.E. 271 (1911); J.L. Betts Co. v. Mimms, 14 Ga. App. 786, 82 S.E. 474 (1914).

If there was a contract for the division of commissions between tax investigators and one investigator collected taxes but refused to pay plaintiff the plaintiff's share of the commission, it would appear that the principle controlling is analogous to that found in this section and that the plaintiff is entitled to the third of the remedies provided by this section. Roberts v. Allen, 31 Ga. App. 660, 122 S.E. 86, cert. denied, 31 Ga. App. 812 (1924).

If an employee is unlawfully discharged before the expiration of the term of employment and, before the expiration of the term, brings suit against the employer for damages sustained by reason of such discharge, the employee's measure of damages is the salary or advancements which the employee was entitled to receive under the terms of the contract for the remainder of the term, subject to reduction by proof at the trial. Fried v. Portis Bros. Hat Co., 41 Ga. App. 30, 152 S.E. 151 (1930).

Trial court properly granted partial summary judgment pursuant to O.C.G.A. § 9-11-56 to an employer on an employee's action alleging breach of an employment contract, holding that the employee could only recover wages payable up to the time of trial; O.C.G.A. § 10-6-37 provided that in all employment contracts for a definite duration, an employee could sue for the value of the services rendered, or could wait until the expiration of the year and sue for and recover the employee's entire wages. In this action the employee elected to affirm the contract and bring an immediate suit for damages based upon the company's alleged breach of the employment contract, and under this option, the employee only had the right to prove, and to recover for, all damages which may have accrued up to the date of the trial. Harvey v. J. H. Harvey Co., 276 Ga. 762, 582 S.E.2d 88 (2003).

Cited in Norman v. Nash, 102 Ga. App. 508, 116 S.E.2d 624 (1960); Redman Dev. Corp. v. Pollard, 131 Ga. App. 708, 206 S.E.2d 605 (1974); Exum Walker, M.D., P.C., Pension Trust v. Joanna M. Knox & Assocs., 132 Ga. App. 12, 207 S.E.2d 570 (1974); Harvey v. J.H. Harvey Co., 256 Ga. App. 333, 568 S.E.2d 553 (2002).

Am. Jur. 2d.

- 3 Am. Jur. 2d, Agency, § 41.

Defending Wrongful Discharge Cases, 36 Am. Jur. Trials 419.

C.J.S.

- 3 C.J.S., Agency, § 625.

ALR.

- Right of agent to offset his own claim against collection made for principal, 2 A.L.R. 132.

Right to recover against employee or his bond for money or property, the fruits of an employment involving a violation of law, 2 A.L.R. 906.

Rights and remedies upon cancellation of sales agency, 32 A.L.R. 210, 52 A.L.R. 546, 89 A.L.R. 252.

Character and extent of right of broker who has exclusive contract, where sale is effected without his agency, 64 A.L.R. 395.

Right, under contract of employment providing for commissions based on amounts collected, to commissions on amounts collected after termination of employment or discharge for cause, upon business effected during term, 65 A.L.R. 993.

Injunction as remedy for breach of contract to employ plaintiff or give exclusive right to promote or sell defendant's product or invention, 173 A.L.R. 1198.

Conclusive election of remedies as predicated on commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.

Recovery on quantum meruit where only express contract is pleaded, under Federal Rules of Civil Procedure 8 and 54 and similar state statutes or rules, 84 A.L.R.2d 1077.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit, 21 A.L.R.3d 9.

Elements and measure of damages in action by schoolteacher for wrongful discharge, 22 A.L.R.3d 1047.

In-house counsel's right to maintain action for wrongful discharge, 16 A.L.R.5th 239.

When statute of limitations commences to run as to cause of action for wrongful discharge, 19 A.L.R.5th 439.

Negligent discharge of employee, 53 A.L.R.5th 219.