Ferreyra v. E. & J. Gallo Winery

• Citation: 231 Cal.App.2d 426,41 Cal.Rptr. 819
• Court: California Court of Appeals
• Decision Date: 22 December 1964
• Parties: Fernando I. FERREYRA, Plaintiff and Appellant, v. E. & J. GALLO WINERY, Defendant and Respondent. Civ. 384.

Page 819

41 Cal.Rptr. 819

231 Cal.App.2d 426

Fernando I. FERREYRA, Plaintiff and Appellant, v. E. & J. GALLO WINERY, Defendant and Respondent.

Civ. 384.

District Court of Appeal, Fifth District, California.

Dec. 22, 1964.

Hearing Denied Feb. 17, 1965.

Cobey & Adams and James A. Cobey, Merced, Jeremy C. Cook and J. Hilary Cook, Turlock, for appellant.

C. Ray Robinson and Mary C. Fisher, Merced, for respondent.

RALPH M. BROWN, Justice.

Appellant appeals from a judgment of nonsuit in a jury trial entered on motion of respondent at the conclusion of appellant's presentation of his evidence in an action for his wrongful discharge by respondent with whom he had a contract of employment.

Appellant, a citizen of Argentina and head of the Agronomy Department of the Corcemar Company, was in charge of a 160,000 acre project reclaiming certain land in South America. In 1960 he was acting as a guide for Ernest Gallo, president of respondent company, who was touring South America at the time. Appellant told Mr. Gallo of his background, education, and his 'long-standing desire' to immigrate to the United States, and appellant testified that in a conversation with Mr. Gallo he 'mentioned to him [appellant] * * * the possibility of a job for him at the Gallo Winery Ranch as a foreman at $450.00 a month. And suggested that he write Mr. Gallo upon his return to the United States.' Appellant did write to Mr. Gallo on April 25, 1960, the letter, reading in part, as follows:

'Mr. Gallo, when you were in Argentina, in the way to San Juan, from Mendosa, we had a conversation about the possibility I could have to get a job in the United States. You told me it could be possible for you to furnish me with such a job.

'An American friend of mine, Capt. Ed. Schmidt from Modesto, California, has already sent to me the affidavis [sic], that is the document will allow me to enter the United States as an immigrant. Therefore, what I need now is to know if I will have a job there, at least for a while, since I have the purpose to take with me about US$ 5,000 to see if I can settle for my own later on.

'Maybe, if you don't have an opportunity in your organization, you may tell me of some friends of you. Could it be possible to have your answer in order I can travel to the States for the last days of June? Do you think I may take my family along with me, or I have to call them later? * * *'

Mr. Gallo's reply, dated May 10, 1960, read as follows:

'I am in receipt of your letter of April 25th, in which you advise that you would like to immigrate to the United States.

'You ask whether there would be an opportunity in my organization, or in that of some of my friends.

'You can understand that I do not know enough about you or your ability to predict whether you will be happy in the United States, or at what type of work you would be most successful. Therefore, I could not recommend you to any of my friends. As for myself, I can only offer you a job as foreman, at a salary of $450.00 per month. I can also provide you with a very small house, but no furniture.

'What you would be worth to my organization would be determined quickly after you started working. I cannot make a commitment, as to the length of time I would keep you, as that would depend entirely upon what we think of your production. * * *'

On June 3, 1960, the appellant again wrote to Mr. Gallo, stating:

'I have received your letter of the 10th of May for which I am extremely grateful. Needless to say, I am greatly interested in your kind offer for employment as foreman at the Gallo Ranch and Vineyards of Livingston at the salary you mentioned.

'Since it will take a couple of months to procure all the documents I need for entrance into the United States, I should like to know whether it is all right with you if I arrive toward the end of July.

'All I can say is thank you again for your magnificent offer, and I will do my very best to live up to your expectation. * * *'

Subsequently, appellant asked for a letter with which to file with the American Consul and Joseph Gallo, respondent's Ranching Division Manager, answered, as follows:

'In reply to your letter of September 6, 1960, we are offering you permanent employment upon your arrival, to the extent of satisfaction to both you and ourselves, on our ranch at Livingston, California as a foreman. The starting rate would be $400.00 per month.'

Meanwhile, appellant quit his job in Argentina, was paid a bonus of approximately $350, sold his house, arrived at Livingston, California, on or about October 8, 1960, and began work for the respondent company on October 15th at $450 per month, together with the use of a house. His work consisted of acting as a crew boss or field foreman of one of several pruning and irrigation crews.

On January 1, 1961, his pay was reduced to $350 per month, at which time he was told that he was too young and too 'green' for the job. He remained on the job and on April 10th was discharged, though paid for the entire month of April, and remained in the house until May 15th.

After his discharge the appellant went to Paul Osteraas, the ranch manager, and requested a certificate of employment with the company, and he was provided with a letter dated April 25, 1961, which read as follows:

'This is to certify that FERNANDO I. FERREYRA was employed by this company from October 15, 1960 to April 30, 1961 as a Field Foreman.

'During this period we found his work to be satisfactory in this capacity.'

Appellant worked at several jobs on various farms after his discharge, and in September 1963 obtained a job at the Defense Language Institute, and at the time of trial was currently employed by the Department of Defense as a civil servant.

Appellant made several offers of proof, which were rejected, as to his owning a home in Argentina, that he had a full-time maid, that he had a wife and six children, and that he moved himself and his family from their home in Argentina to Livingston, California, at a total expense to himself of $2,683.

Under the rule of law applicable to nonsuit cases of this type, the rule states that in a case tried before a jury a motion for nonsuit may be granted only when, viewing the evidence in the light most favorable to the plaintiff, the result is that there is no evidence in the record of sufficient substantiality to uphold a verdict for plaintiff, and in making this determination the trial court must disregard all conflicting evidence and must give to plaintiff's evidence all the probative force to which it is legally entitled. (Meyer v. Blackman, 59 Cal.2d 668, 671-672, 31 Cal.Rptr. 36, 381 P.2d 916; 16 Cal.Jur.2d, Dismissal, § 45, pp. 208-209; 2 Witkin, California Procedure, Trial, §§ 125, 126, 127, pp. 1857-1859.)

It is appellant's contention that the exchange of letters created a contract of permanent employment which respondent was not privileged to break by his discharge without cause, because the appellant had furnished the respondent consideration for his contract in addition to his services thereunder. It is claimed that such consideration consisted of his giving up his job and his way of life in Argentina, moving his entire family to California at substantial expense in response to and reliance upon respondent's offer of May 10, 1960, to give appellant permanent employment.

Appellant does not argue with the proposition that a personal service contract between an employer and an employee for so long as the employer is satisfied with the services is a contract for an indefinite term; or that a contract for an indefinite term is a contract for permanent employment, and cites Lord v. Goldberg, 81 Cal. 596, 601-602, 22 P. 1126; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 39, 172 P.2d 867; Ruinello v. Murray, 36 Cal.2d 687, 689-690, 227 P.2d 251; or that either party to a permanent employment contract is privileged to terminate it at will and with or without cause. This latter rule is laid down in Labor Code section 2922. However, it is the appellant's contention that where the employee furnishes to the employer consideration in addition to his services, the employer is not privileged to terminate a permanent employment contract without cause. (See Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d 34, at page 39, 172 P.2d 867; Ruinello v. Murray, supra, 39 Cal.2d 687, at pages 689-690, 227 P.2d 251.)

It is the rule that a 'contract for permanent employment is only a contract for an indefinite period, terminable at the will of either party unless it is based on some consideration other than the services to be rendered.' (Gressley v. Williams, 193 Cal.App.2d 636, 642, 14 Cal.Rptr. 496, 500.)

It is appellant's contention that the giving up of his employment in Argentina and moving himself and family to California was impliedly bargained for between the parties, because Ernest Gallo knew that the appellant was then employed in Argentina, living there with his family, and he would have to give up this employment and home and move his family to California. Appellant further argues that the conduct of the respective parties as to such consideration was naturally not necessarily mentioned, as both knew that such should be apparent to anyone and that such implication under the circumstances is a question of fact for the jury.

With reference to consideration, it must be noted that in Seifert v. Arnold Bros., Inc., 138 Cal.App. 324, 31 P.2d 1059, the written agreement signed by the employer gave the employee the employment '* * * In consideration of your purchasing an Essex Coupe we are offering you employment * * *.'

In Millsap v. National Funding Corp., 57 Cal.App.2d 772, p. 775, 135 P.2d 407, the employee told the employer that she would not change her position unless she was given permanent employment. In this case the recognized definition of 'consideration' as codified in section 1605 of the Civil Code is discussed.

Quoting from volume 6, California...