Baker Marine Corp. v. Moseley, No. 1982

• Court: Court of Appeals of Texas
• Writing for the Court: UTTER
• Citation: 645 S.W.2d 486
• Parties: BAKER MARINE CORPORATION, Appellant, v. Frank MOSELEY, Appellee. cv.
• Decision Date: 26 August 1982
• Docket Number: No. 1982

Page 486

645 S.W.2d 486 BAKER MARINE CORPORATION, Appellant,
v.
Frank MOSELEY, Appellee. No. 1982cv. Court of Appeals of Texas,
Corpus Christi. Aug. 26, 1982.
Supplemental Opinion Sept. 9, 1982.
Rehearing Denied Oct. 14, 1982.

Page 487

Lev Hunt, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellant.

James M. Whitten, Sinton, for appellee.

Before BISSETT, UTTER and KENNEDY, JJ.

OPINION

UTTER, Justice.

This is an appeal from a suit on an employment agreement instituted by Frank Moseley against Baker Marine Corporation. Trial to a jury resulted in a verdict in favor of the appellee, Frank Moseley, and the trial court entered judgment accordingly. From that judgment, the appellant, Baker Marine Corporation, has duly prosecuted this appeal. We affirm.

In 1975, Moseley began a company called Corpus Christi Fabricators. A large percentage of the work of this company was done for Baker Marine. Following the completion of the Baker Marine contract, Corpus Christi Fabricators had no more work to do and as a consequence was in financial difficulty. The business was sold to Baker Marine and renamed Baker Manufacturing. The sale of the business included an agreement that Moseley would be employed by Baker Marine to run and supervise Baker Manufacturing in the building of jacks (gear boxes) to be used in the construction of offshore rigs.

Baker Marine circulated a memorandum with respect to Moseley's compensation. The pertinent portion of the memorandum is as follows:

"To: S.M. Vaughan

From: Bill Geer

Date: July 27, 1978

Subject: Frank Moseley-Employment Compensation

At the time of the purchase of the assets of Corpus Christi Fabricators, Larry A. Baker, Sr. made the following deal with Frank for his compensation. It was agreed that he would get a guaranteed salary which would be an advance against any compensation that was to become due him. Frank would receive an amount equal to one-half of the difference between $150,000.00 and the total cost of performing all machine work to be done in connection with manufacture of the jacks (gear boxes). In determining such total cost, the general concept would be just as if the operation was owned by Frank; that is, included in cost would be all direct labor, indirect labor, and cost of working capital. Finally, an additional cost would be added in a reasonable amount for services performed by BMC employees in connection with Baker Manufacturing Company's operations.

* * *

* * *

The time Frank would be paid his one-half of the difference between the actual cost of the job and $150,000.00 would be at the completion of the job when all costs could be finally determined. However, we discussed that if during the progress of the job, he required advances we would be reasonable in making such advances.

All of the above, with the exception of the computation of work for miscellaneous, was to be done for the first two contracts only, with a commitment from BMC that after the first two contracts another arrangement would be made with Frank that was equally satisfactory, perhaps involving working on a percentage basis. Frank has indicated that the present arrangement is satisfactory and

Page 488

would like to continue on this basis. My recommendation is also that this method of compensation computation be continued since it furnishes Frank an incentive to perform his work at the lowest possible cost."

The two contracts referred to were for jacks (gear boxes) for jobs labeled 04 and M11. While employed by Baker Marine, Moseley completed work on jobs 04, 05, 06, 08, 09, M11 and M14. Moseley testified that he completed jobs 07 and M15 to 65% of completion. This was the only agreement testified to by either appellant or appellee. Moseley testified that he thought that he would be working under the initial arrangement unless some other suitable agreement was reached. Moseley was paid approximately $117,000.00 for his work on jobs 04 and M11 and also for his work on 05 in accordance with the compensation arrangement. He was not paid anything on any of the other jobs he worked on other than his salary. At trial, Moseley introduced testimony showing that he was not owed anything on 05 or M11, that he was due $10,000.00 on 04 and that he was owed the following amounts on the jobs he had not been paid on: 06-$30,598.00; 08-$25,554.00; 09-$23,032.50; M14-$20,300.00; 07 and M15-$49,749.96.

Moseley's claim was submitted to the jury in the following manner and the jury answered as follows:

"SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that Defendant, BAKER MARINE CORPORATION, employed Plaintiff, FRANK MOSELEY, to do machining and miscellaneous work which included work on any one or more of the following jobs?

Job Yes No
                ---- ---- ----
                04 X
                06 X
                07 X
                08 X
                09 X
                M14 X
                M15 X
                

SPECIAL ISSUE NO. 2

If any or all of your answers in question No. 1 were "yes", answer the following question as to the rigs involved.

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence is owed by Defendant, BAKER MARINE CORPORATION, and unpaid to Plaintiff, FRANK MOSELEY, under terms of employment with regard to any of the following jobs.

Answer in dollars and cents, or "none".

Job $ None
                ---- --------- ----
                04 $ 5,000
                06 $20,000
                07 $20,000
                08 $20,000
                09 $20,000
                M14 $20,000
                M15 $20,000
                 TOTAL $125,000"
                

The following instruction accompanied the special issues.

"A contract of employment is reached if the parties manifested assent to the agreement so that a reasonable person would have understood there to have been an offer of employment and an acceptance of employment supported by consideration. The agreement to perform by a promisee may constitute consideration. The agreement to pay by a promisor may constitute consideration."

Baker Marine duly objected to the aforementioned issues and instruction. The jury returned the verdict as shown and judgment was entered for Moseley in the amount of $125,000.00 with interest.

In its first point of error, Baker Marine claims that the trial court committed reversible error in submitting...