Bacon v. Karr

• Decision Date: 21 March 1962
• Docket Number: No. 2592,2592
• Citation: 7 A.L.R.3d 889,139 So.2d 166
• Parties: Eve BACON, Appellant, v. Lloyd KARR and Margaret P. Karr, his wife, and Winter Park Publishing Company, a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 166

139 So.2d 166

7 A.L.R.3d 889

Eve BACON, Appellant, v. Lloyd KARR and Margaret P. Karr, his wife, and Winter Park Publishing Company, a Florida corporation, Appellees.

No. 2592.

District Court of Appeal of Florida, Second District.

March 21, 1962.

Harold A. Ward III, Winderweedle, Haines, Hunter & Ward, Winter Park, for appellant.

O. B. McEwan and Maurice M. Paul, Sanders, McEwan, Schwarz & Mims, Orlando, for appellees.

WHITE, Judge.

Appellant Eve Bacon, plaintiff below, is aggrieved by an order dismissing with prejudice her amended complaint in an action by which she sought damages for breach of an employment contract. The defendants were the appellees Lloyd Karr, Margaret P. Karr, his wife, and Winter Park Publishing Company which was the alleged corporate assignee of the contract by which the defendants Karr agreed to employ the plaintiff for three years at $100 per week plus a bonus of 5% of the net profits of the publishing business. The question before us is whether or not the plaintiff pleaded a justiciable case, so the allegations of the amended complaint are accepted as true insofar as they are well pleaded.

On February 5, 1959 plaintiff Eve Bacon and one James O. Hardee owned or controlled the capital stock of Winter Park Sun, Inc., a publishing establishment, and on said date they entered into an agreement with Lloyd Karr and Margaret P. Karr by which the Karrs purchased all the stock of said corporation. The agreement provided that Eve Bacon would not compete with the Karrs nor become associated with any other advertising or publishing media within Orange County and adjoining Florida counties for a period of then years from April 1, 1959. It was also provided that Eve Bacon could sell literary articles to national magazines and act as local correspondent for a Jacksonville newspaper so long as such activities did not interfere with her duties 'as full time employee of the within vendees.'

On the same date as the forgoing stock sale agreement, to-wit, February 5, 1959, Eve Bacon as employee and Lloyd and Margaret Karr as employers contracted and agreed as follows:

'THIS AGREEMENT made and entered into this 5th day of February, 1959, by and between Eve Bacon, hereinafter called the Employee and Lloyd Karr & Margaret P. Karr, hereinafter called the Employer, WITNESSETH THAT:

'IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS:

'1. The Karrs agree to employ Eve Bacon in the operation of a newspaper in Winter Park, Florida, and individually and personally guarantee the performance hereof by the Employer regardless of the business form or entity of the said newspaper operation, if the said Eve Bacon does and is physically able to perform the services, upon the following terms:

'A. For a period of three years from March 31, 1959.

'B. At a salary of $100.00 per week.

'C. Plus a bonus of 5% of the net profit of the corporation or other business form or entity by which the said newspaper is operated, after computing and deducting all income takes.

'D. This compensation and employment is based upon the full time efforts and services of Mrs. Bacon who agrees to exert her best efforts on behalf of the business.

'E. Mrs. Bacon agrees to fully cooperate in carrying out all promotions and directions of employers and to give her best advice and suggestions in furthering said business. * * *.' (Emphasis added.)

Pursuant to the foregoing arrangement Eve Bacon worked for the defendants from March 31, 1959 to April 22, 1960 when the defendants discharged her and refused to pay her any further salary. In the mean-time Lloyd and Margaret Karr had formed the defendant corporation, Winter Park Publishing Company, to which they allegedly assigned their rights and obligations with respect to the services of Eve Bacon. Winter Park Publishing Company continued to employ Eve Bacon and issued to her the $100.00 weekly salary checks until the aforesaid date of April 22, 1960.

Lloyd and Margaret Karr were attorneys licensed to practice law in Iowa and the agreements of February 5, 1959 were proposed and drafted by said defendants. In concluding the allegations of her complaint, Eve Bacon asserted that while working for the defendants she refused to consider other offers of employment. She averred that she performed all the stipulations on her part and that she continued ready, able and willing to perform as contemplated by agreement of the parties.

The defendants moved to dismiss the complaint on the ground that it failed to state a cause of action. They also moved to strike Winter Park Publishing Company as a defendant on the ground that said corporation was not a proper party. The trial court granted both motions by order finding that the two agreements appended as exhibits to the complaint were not to be considered in pari materia and that the employment agreement was legally insufficient and unenforceable. The plaintiff Eve Bacon has appealed, raising the following points which are covered by the assignments of error: The trial court erred (1) in holding the employment agreement insufficient and unenforceable, (2) in holding that the stock sale and employment agreements were not to be treated in pari materia and (3) in dismissing Winter Park Publishing Company as a defendant.

The defendant-appellees advance the argument that the employment agreement lacked essential mutuality of obligation in that by use of the words '* * * if the said Eve Bacon does and is physically able to perform the services. * * *,' the contract did not require the plaintiff to do anything. The plaintiff-appellant contends on the other hand that mutuality of obligation is clearly disclosed by a contextual analysis of the employment agreement which moreover, according to the second point on appeal, should have been considered in pari materia with the stock sale agreement of the same date. The views of this court are in substantial accord with those of the appellant.

The stock sale agreement contemplated liquidation of the existing publishing establishment in furtherance of the plan of the Karrs to form a new corporation to supplant the old Winter Park Sun, Inc. The restrictive covenants limiting the activities of Eve Bacon and James Hardee were parts of the overall consideration moving from said vendors to the vendees. The stock sale agreement thus provided the threshold of the employment agreement of the same date and accentuated the employment feature by referring to Eve Bacon as '* * * full time employee of the within vendees * * *',--a status which was not to be disrupted by any extraneous activity. Although we regard the employment agreement as containing within itself sufficient evidence of mutuality of obligation, it appears that it was so interwoven with the stock sale agreement in point of time, subject matter and identity of parties as to make a joint consideration thereof proper in evaluating the rights and obligations of the parties.

It may be emphasized that the employment agreement committed the Karrs to employ Eve Bacon 'regardless of the business form or entity of said newspaper corporation,' while the concurrent stock sale agreement pointed up the purpose of the Karrs to form their new establishment of which the co-vendor, Eve Bacon, would be a full time employee pledged not to compete. Thus the Karrs and Winter Park Publishing Company, Inc., though technically distinct, were in effect one and the same and a conjunctive consideration of the two agreements would logically assist in appraising the relations of the parties and the circumstances of their dealings. See Standard Newspapers, Inc. v. Woods, Fla.1959, 110 So.2d 397; J. M. Montgomery Roofing Co., Inc. v. Fred Howland, Inc., Fla.1957, 98 So.2d 484; Thompson v. Shell Petroleum Corporation, 1938, 130 Fla. 652, 178 So. 413, 117 A.L.R. 248.

Mutuality of obligation in sometimes confused with mutuality of remedy. Obligation pertains to the consideration while remedy pertains to the means of enforcement. Mutual obligation is essential, but the means of enforcement may differ without necessarily affecting the reciprocal obligations of the parties. In Thompson v. Shell Petroleum Corporation, supra, the court said:

'* * * 'The legal principle that contracts must be mutual does not mean that in every case each party must have the same remedy for a breach as the other. Mere difference in the right stipulated for does not destroy mutuality of remedy * * * so long as the bounds of reasonableness and fairness are not transgressed'. [32 C.J. Injunctions, § 297.]'

See also 7 Fla.Jur., Contracts, §§ 9, 10.

In Jones v. McCallum, 1885, 21 Fla. 392, McCallum agreed to write editorials for the Times Union during a period of one year 'as his health may permit' for a consideration of $1,000.00. McCallum died a day or two after the date of the contract and wrote no editorials whatsoever. In the event of McCallum's death before the year's end, the money was to be paid to his widow. The court, in holding that there was...