Forsyth v. Board of Trustees of Park College

• Decision Date: 10 May 1948
• Parties: Byrd Forsythe, Respondent, v. The Board of Trustees of Park College, a Corporation, Appellant
• Court: Kansas Court of Appeals

212 S.W.2d 82

240 Mo.App. 622

Byrd Forsythe, Respondent, v. The Board of Trustees of Park College, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

May 10, 1948

Delivered

Appeal from Circuit Court of Platte County; Hon. Fred H. Maughmer Judge.

Judgment Reversed.

Frank E. Tyler, Edwin Earnshaw, John W. Coots and Gossett, Ellis Dietrich & Tyler for appellant.

(1) Employment at a stated monthly salary constitutes a hiring at will, terminable by either party without notice, and is not evidence of a contract for a fixed term. 35 American Jurisprudence 457, Sec. 20; Brookfield v. Drury College, 139 M. A. l. c. 365; Clarkson v. Standard Brass Co., 170 S.W. 2d 407 Mo. App.; Paisley v Lucas, 346 Mo. 827. (2) Some consideration in addition to the rendering of services for the payment of salary is necessary in order to support a finding of a contract of employment for a fixed term. Minter v. Dry Goods Co., 187 M. A. 16; Paisley v. Lucas, 346 Mo. 827; Wolfe v. Stark Nurseries, 288 S.W. 1004; Williams v. Hesser Coal Co., 207 M. A. 197; R. S. Mo. 1939, Sec. 3354.

Walter J. Gresham for respondent.

(1) Plaintiff was entitled to judgment as a matter of law. 39 Corpus Juris 49, Sections 20, 58 and 59; Bell v. Pepper Tobacco Warehouse Co., 205 Mo. 475, 103 S.W. 1014; Morris v. Z. T. Briggs Photo. Supply Co., 192 Mo.App. 145, 179 S.W. 783; Embry v. Hargadine-McKittrick D. G. Co., 127 Mo.App. 383, 105 S.W. 777.

OPINION

Dew, J.

This is an action for alleged breach of contract for services. A jury was waived and the court, sitting as a jury, gave verdict and judgment for the plaintiff for $ 540, with interest and costs. The defendant has appealed.

The plaintiff's petition alleges, in effect, that for several years she had been employed by the defendant as a housemother, her usual duties beginning about September 1 each year and running until after commencement ceremonies, or about August 1, for which she was paid $ 60 a month, plus board and living quarters of the reasonable value of $ 40 a month; that she was employed about August 25, 1945, for the ensuing college year and directed to report for duty September 1, 1945; that she began her duties at that time and held herself in readiness to perform the same thereafter; that she was paid $ 60 a month from September to December, 1945, inclusive, but not for January, 1946, or for succeeding months; that she was furnished her board and living quarters as part of her services until April 15, 1945; that on or about January 18, 1945, defendant partly repudiated said contract of employment and tendered her $ 60 for the month of January, plus $ 36 for services not yet rendered to February 18, 1946, which plaintiff declined; that defendant continued to provide her with board and living quarters as agreed until March 21, 1946, at which time it notified her to vacate on or about April 25, 1946, thereby repudiating said contract of employment; that by reason of said breach she is entitled to $ 60 a month from January, 1946 to July, 1946, inclusive, amounting to $ 420, and $ 40 a month, the value of board and room from April 15 to July 31, amounting to $ 140, or a total of $ 560, with interest and costs.

Defendant's amended answer admits that its president named was its authorized agent at the time of her first employment; admits that it employed the plaintiff at $ 60 a month, and furnished her living quarters and board; admits that it served written notice on plaintiff to vacate her quarters on or about April 15, 1946; denies that it ever employed plaintiff for a college year from September 1, 1945 to July 31, 1946, or for any other fixed period, by any contract, express or implied, and generally denies the other allegations of the petition. The answer further stated that on January 16, 1946, in consideration of 30 days' services paid, the plaintiff agreed to leave the premises of the defendant on January 18, 1946 and terminate her relations with the defendant, and that the defendant tendered payment in accordance with such agreement.

Plaintiff testified in substance that she was orally employed in 1943 by Dr. Young, president of the College. He told her that her salary would be $ 60 a month, plus maintenance. She mentioned the matter of vacation and that she usually did not work during the month of August, and he said "we can take care of that". She worked under the above terms until 1945, when Dr. Rohrbough became president of the college. On August 25, 1945, he wrote her a letter requesting her to report for duty on August 31, 1945. Upon her return she occupied quarters in the same dormitory to which she had previously been assigned. On October 10, 1945, the president wrote her a communication wherein he stated his attention had been called to the fact that no duties had been assigned her for 30 days and he regretted that situation, and realized that it was not her fault. He gave instructions to her to serve the heads of residences in the various dormitories, and to assist at the hospital. He sent for her in January, 1946, and told her that he did not need her any more, and asked if she would be willing to vacate her quarters by the following Saturday. Plaintiff agreed to do this but later, upon advice of counsel, refused to do so and declined a check tendered her. She had been paid for December, 1945, and the January, 1946, check was due. She continued to live at the dormitory and ate her meals at the college until April 20, when, upon order from the college, she vacated. Upon cross-examination she was asked if at the time of her first employment the president told her he would keep her for the school year and if she ever had a conversation with him in which he so agreed. She answered "No". She was asked:

"Q: Did he ever write you a letter to that effect?

"A: No, I never had a letter from Doctor Young the whole time I was there before or after.

"Q: Did Doctor Rohrbough have a conversation with you in which he said that you were employed for the school year?

"A: No. That letter was what I received to come and report".

Plaintiff testified that she had been paid each month during her employment, including her vacation, and since her discharge had lived in Peoria, Illinois, and had not been employed until the following September. She admitted that Dr. Young, when first employing her, did not tell her the position would be permanent, and she said: "I don't think any College does that. If your duties are all right, why you just go back unless you are told not to return". She said she had no separate agreement with Dr. Rohrbough when she returned in September, 1945. "No, they do not give written contracts, no, so there is no written agreement whatsoever".

Plaintiff introduced the deposition of Dr. Rohrbough, president of the college, who testified that when he took the office in July 1945, he was informed that plaintiff had been an employee at the college as housemother but that he did not then know the terms under which she had been employed. On August 25, 1945, he wrote her to report for work and expected her to do so under the same terms. No new arrangement was made with her. He was familiar with the ordinary duties of such an employee. He said...