469 P.2d 177 (Hawai'i 1970), 4828, McIntosh v. Murphy

Docket Nº:4828.
Citation:469 P.2d 177, 52 Hawai'i 112, 52 Hawai'i 29
Opinion Judge:[10] Levinson
Party Name:Dick McINTOSH and Martha McIntosh v. George MURPHY and Murphy Motors, Limited, a Hawaii Corporation.
Attorney:[7] L. Richard Fried, Jr. and Ted Gamble Clause (Pratt, Moore, Bortz & Case of counsel) for defendants-appellants. [8] Katsugo Miho (Fong, Miho, Choy & Robinson of counsel) for plaintiffs-appellees.
Case Date:May 11, 1970
Court:Supreme Court of Hawai'i

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469 P.2d 177 (Hawai'i 1970)

52 Hawai'i 112, 52 Hawai'i 29

Dick McINTOSH and Martha McIntosh


George MURPHY and Murphy Motors, Limited, a Hawaii Corporation.

No. 4828.

Supreme Court of Hawai'i.

May 11, 1970

Rehearing Denied June 12, 1970.

Syllabus by the Court

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise.

[52 Hawai'i 37] L. Richard Fried, Jr. and Ted Gamble Clause, Honolulu (Pratt, Moore, Bortz & Case, Honolulu, of counsel), for defendants-appellants.

Katsugo Miho, Honolulu (Fong, Miho, Choy & Robinson, Honolulu), for plaintiffs-appellees.

[52 Hawai'i 29] Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

LEVINSON, Justice.

This case involves an oral employment contract which allegedly violates the provision of the Statute of Frauds requiring

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'any agreement that is not to be performed within one year from the making thereof' to be in writing in order to be enforceable. HRS § 656-1(5). In this action the plaintiff-employee Dick McIntosh seeks to recover damages from his employer, George Murphy and Murphy Motors, Ltd., for the breach of an alleged one-year oral employment contract.

While the facts are in sharp conflict, it appears that defendant George Murphy was in southern California during March, 1964 interviewing prospective management personnel for his Chevrolet-Oldsmobile dealerships in Hawaii. He interviewed the plaintiff twice during that time. [52 Hawai'i 30] The position of sales manager for one of the dealerships was fully discussed but no contract was entered into. In April, 1964 the plaintiff received a call from the general manager of Murphy Motors informing him of possible employment within thirty days if he was still available. The plaintiff indicated his continued interest and informed the manager that he would be available. Later in April, the plaintiff sent Murphy a telegram to the effect that he would arrive in Honolulu on Sunday, April 26, 1964. Murphy then telephoned McIntosh on Saturday, April 25, 1964 to notify him that the job of assistant sales manager was open and work would begin on the following Monday, April 27, 1964. At that time McIntosh expressed surprise at the change in job title from sales manager to assistant sales manager but reconfirmed the fact that he was arriving in Honolulu the next day, Sunday. McIntosh arrived on Sunday, April 26, 1964 and began work on the following day, Monday, April 27, 1964.

As a consequence of his decision to work for Murphy, McIntosh moved some of his belongings from the mainland to Hawaii, sold other possessions, leased an apartment in Honolulu and obviously forwent any other employment opportunities. In short, the plaintiff did all those things which were incidental to changing one's residence permanently from Los Angeles to Honolulu, a distance of approximately 2200 miles. McIntosh continued working for Murphy until July 16, 1964, approximately two and one-half months, at which time he was discharged on the grounds that he was unable to close deals with prospective customers and could not train the salesmen.

At the conclusion of the trial, the defense moved for a directed verdict arguing that the oral employment agreement was in violation of the Statute of Frauds, there being no written memorandum or note thereof. The trial court ruled that as a matter of law the contract did not come [52 Hawai'i 31] within the Statute, reasoning that Murphy bargained for acceptance by the actual commencement of performance by McIntosh, so that McIntosh was not bound by a contract until he came to work on Monday, April 27, 1964. Therefore, assuming that the contract was for a year's employment, it was performable within a year exactly to the day and no writing was required for it to be enforceable. Alternatively, the court ruled that if the agreement was made final by the telephone call between the parties on Saturday, April 25, 1964, then that part of the weekend which remained would not be counted in calculating the year, thus taking the contract out of the Statute of Frauds. With commendable candor the trial judge gave as the motivating force for the decision his desire to avoid a mechanical and unjust application of the Statute. 1

The case went to the jury on the following questions: (1) whether the contract was for a year's duration or was performable on a trial basis, thus making it terminable

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at the will of either party; (2) whether the plaintiff was discharged for just cause; and (3) if he was not discharged for just cause, what damages were due the plaintiff. The jury returned a verdict for the plaintiff in the sum of $12,103.40. The defendants appeal to this court on four principal grounds, three of which we find to be without merit. The remaining ground of appeal is whether the plaintiff can maintain an action on the alleged oral employment contract in light of...

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