Lanham v. MR. B'S OIL COMPANY, INC.

166 Ga. App. 372 (1983)

304 S.E.2d 738

LANHAM v. MR. B'S OIL COMPANY, INC.

66135.

Court of Appeals of Georgia.

Decided April 21, 1983.

Marson G. Dunaway, Jr., Kathryn W. Stringer, for appellant.

Anthony O. L. Powell, for appellee.

BANKE, Judge.

This appeal is from a grant of summary judgment for the defendant/employer in an action by a former employee. The complaint alleges that the plaintiff left other employment for employment with defendant based on defendant's promises both that her hourly wage would exceed that of her former job and that she would be able to work 40 hours per week; that she was fired after working one week; and that she has been unable to obtain other employment. In her deposition, the plaintiff acknowledges that, in connection with her application for employment with the defendant, she executed the following agreement: "I further understand that this agreement does not constitute a contract for my employment by the company for any specific period of time and that my services may be terminated at any time for any reason by either the company or myself."

Appellant concedes that her employment contract was terminable at will and thus provides no basis for a wrongful termination action. She contends, however, that her complaint and deposition make out a sufficient showing of fraud to preclude summary judgment for the defendant. Held:

"[A]ctionable fraud cannot be based upon a promise as to future events; nor does actionable fraud arise from a mere failure to perform a promise. Beach v. Fleming, 214 Ga. 303 (104 SE2d 427); Pantone v. Pantone, 203 Ga. 347 (46 SE2d 498). To the above rule there exists an *373 exception for promises as to future events made with the present intention not to perform. However, we have found the exception to be inapplicable where, as here, there is an underlying, terminable-at-will employment contract. Ely v. Stratoflex, Inc., 132 Ga. App. 569 (208 SE2d 583)." Hill v. Delta Air Lines, 143 Ga. App. 103, 105 (237 SE2d 597) (1977). "The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable." Ely v. Stratoflex, Inc., supra at 572.

Judgment affirmed. Deen, P. J., and Carley, J., concur.