Davis v. Grimes

• Decision Date: 06 November 1934
• Parties: DAVIS v. GRIMES.
• Court: New Hampshire Supreme Court

175 A. 238

DAVIS

v. GRIMES.

Supreme Court of New Hampshire. Strafford.

Nov. 6, 1934.

Transferred from Superior Court, Strafford County; Young, Judge.

Action in assumpsit by Robert F. Davis against Frank E. Grimes. Verdict for plaintiff, and case transferred to the Supreme Court,

Judgment on the verdict.

Assumpsit for breach of an oral contract of employment. A trial by jury resulted in a verdict for the plaintiff.

Prior to the contract here in dispute, the plaintiff, who is a nephew of the defendant, was employed by a firm in Boston as a traveling salesman at $40 per week and expenses. The defendant is, and for many years has been, engaged in the wholesale fruit and produce business and the retail coal business in Dover.

In October, 1926, according to the plaintiff's version of the contract, the defendant told the plaintiff that he wanted him to come vp to Dover and work for him, since he was getting along in years and wished to retire within a year or so and turn the business over to his son Laurence and the plaintiff. In March, 1927, the defendant reiterated the statements made to the plaintiff the previous October, and offered him $25 per week, his board, room, and washing, and a share in the business if he would enter his employment. The plaintiff accepted this offer, and on May 1, 1927, came to work for the defendant. In August, 1928, the plaintiff inquired of the defendant regarding his share in the business, and the defendant said he was planning to incorporate his business the following January, and would then talk further with him regarding his share. In January, 1929, the defendant did incorporate his business, and told the plaintiff that he could have 25 of the 100 shares of stock to be issued at that time. In November, 1929, the plaintiff asked for his shares, but was told he could not have them without paying par value for them. Whereupon the plaintiff gave notice, and on December 15, terminated his employment with the defendant.

The defendant admitted the employment of the plaintiff from May 1, 1927, to December 15, 1929, at $25 per week and his board, room, and washing, but denied that he had ever promised to give the plaintiff any share in his business, although he did admit that he offered to sell him 25 shares of stock in November, 1929.

At the close of the plaintiff's evidence, the defendant moved for a nonsuit "on the ground the contract as alleged by the plaintiff is within the Statute of Frauds and must be in writing." This motion was denied, and the defendant excepted. At the close of all the evidence, the defendant moved generally for a dircted verdict, which motion was also denied subject to exception.

Conrad E. Snow and Leonard C. Hardwick, both of Rochester (Conrad E. Snow, of Rochester, orally), for plaintiff.

Hughes & Burns, of Dover (G. T. Hughes, of Dover, orally), for defendant.

WOODBURY, Justice.

The defendant contends that "the contract alleged to have been made in March, 1927, was within the Statute of Frauds, was not evidenced in writing, and therefore void," and that "the alleged contract in January, 1929, was in substitution of the first alleged contract, was not evidenced in writing, and therefore void." In support of these contentions the defendant argues that, since he conducted his business on land which he owned, a promise to transfer a share in the business...