Carter v. Bartek
| Citation | 142 Conn. 448,114 A.2d 923 |
| Parties | Wentworth T. CARTER v. Stephen R. BARTEK, Jr. Supreme Court of Errors of Connecticut |
| Decision Date | 07 June 1955 |
| Court | Supreme Court of Connecticut |
Robert L. Fay, Wallenford, for the appellant, (defendant).
Charles A. Watrous, New Haven, with whom were William M. Stremlau, Meriden, and, on the brief, Richard C. Harpham, Meriden, for the appellee (plaintiff).
Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.
O'SULLIVAN, Associate Justice.
The plaintiff instituted this action to recover damages for the breach of an oral agreement of employment. The defendant has appealed from the judgment rendered upon a plaintiff's verdict. The questions posed on the appeal are whether the court was in error (1) in failing, upon motion, to direct a verdict for the defendant because of a variance between the allegations of the complaint and the proof as to the term of the agreement, and (2) in failing to set the verdict aside as excessive.
The complaint alleged that the defendant agreed to employ the plaintiff 'for one year from February 2, 1953.' The allegation as to the term of employment was put in issue by the answer. The defendant's contention is this: There was no evidence that the parties had agreed upon a one-year term of employment; on the contrary, the only evidence pertaining to the length of employment was that it was to be on a permanent basis; accordingly, since this created a fatal variance between allegation and proof, the court should have directed a verdict for the defendant.
If the agreement between the parties provided for the permanent employment of the plaintiff, the defendant might have been legally justified in discharging the plaintiff, as he did, on August 21, 1953. In the absence of a consideration in addition to the rendering of services incident to the employment, an agreement for permanent employment is no more than an indefinite general hiring, terminable at the will of either party without liability to the other. Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, 182; Adolph v. Cookware Co. of America, 283 Mich. 561, 568, 278 N.W. 687; Skagerberg v. Blandin Paper Co., 197 Minn. 291, 294, 266 N.W. 872; Savarese v. Pyrene Mfg. Co., 9 N.J. 595, 600, 89 A.2d 237; Arentz v. Morse Dry Dock & Repair Co., 249 N.Y. 439, 444, 164 N.E. 342, 62 A.L.R. 231; Shealy v. Fowler, 182 S.C. 81, 87, 188 S.E. 499; 35 Am.Jur. 460, § 24; notes, 35 A.L.R. 1432, 135 A.L.R. 646; see Boucher v. Godfrey, 119 Conn. 622, 627, 178 A. 655.
The weakness of the contention of the defendant as to the matter now under discussion is that he has culled from the plaintiff's testimony an isolated statement to the effect that the defendant said the employment 'would be on a permanent basis.' But he has thoughtlessly overlooked or deliberately ignored numerous bits of testimony indicating that the parties had not only discussed a one-year term of employment but had also incorporated it in their agreement. Thus, as disclosed by the evidence, the defendant told the plaintiff that he, the defendant, had been advised by his physician to enter a tuberculosis sanatorium 'for the next year'; the parties were to adjust the plaintiff's compensation at the 'end of the first year'; the over-all compensation was predicated on $10,000 'for the year'; and the difference between that amount and what the plaintiff was to receive at the rate of $120 a week was to be paid 'at the end of the year.' The evidence was more than ample to warrant the jury in deciding that the term of employment was one year. The court was...
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...Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426; Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316; Carter v. Bartek, 142 Conn. 448, 450, 114 A.2d 923; Boucher v. Godfrey, 119 Conn. 622, 627, 178 A. 655. The majority by seeking to extend a "modicum" of judicial protection......
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