Foster v. Atlas Life Ins. Co.

• Decision Date: 20 October 1931
• Docket Number: Case Number: 19794
• Citation: 1931 OK 617,6 P.2d 805,154 Okla. 30
• Parties: FOSTER v. ATLAS LIFE INS. CO.
• Court: Oklahoma Supreme Court

1931 OK 617

6 P.2d 805

154 Okla. 30

FOSTER v. ATLAS LIFE INS. CO.

Case Number: 19794

Supreme Court of Oklahoma

Decided: October 20, 1931

Syllabus

¶0 1. Master and Servant--Contract of Employment of Indefinite Duration--Termination by Either of Party at Will.

A contract of employment which does not by its terms fix any period or duration between the parties and its duration is indefinite, may be terminated by either party at any time. Arkansas Valley Town & Land Co. v. A., T. & S. F. Ry. Co., 49 Okla. 282, 151 P. 1032; Rogers v. White Sewing Machine Co., 59 Okla. 40, 157 P. 1044.

2. Same.

"It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed but for no fixed period, either may end the contract whenever he chooses. The one may work, or refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason therefor." National Protective Ass'n v. Cumming, 170 N.Y. 320, 63 N.E. 369.

3. Evidence -- Parol Evidence Varying Terms of Written Contract.

"Parol evidence is not admissible to vary, add to, or change the terms of a written contract and cannot be admitted under the guise of explaining or construing the contract where the written contract is plain in its terms, and no fraud, accident, or mistake is alleged in the execution of the same." Pine v. Lenox Drilling Co., 119 Okla. 225, 249 P. 420.

4. Same.

"It is a general rule that parol evidence cannot be permitted to supply an omission of any essential element of the contract." Halsell v. Renfrow, 14 Okla. 674, 78 P. 118.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by T. F. Foster against the Atlas Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Ledbetter, Stuart, Bell & Ledbetter, for plaintiff in error.

McComb & McComb and Stephen C. Treadwell, for defendant in error.

McNEILL, J.

¶1 This is an appeal from the district court of Oklahoma county. The parties will be referred to as they appeared in the trial court: T. F. Foster, plaintiff in error, as plaintiff, and Atlas Life Insurance Company, a corporation, defendant in error, as defendant.

¶2 This action was instituted on June 8, 1927, in the district court of said county, by said plaintiff against said defendant for the cancellation of a certain contract of employment with said defendant. Plaintiff alleged in his amended petition that said plaintiff, on the 21st day of November, 1925, entered into a contract of employment with the defendant through its duly authorized agent and president, H. L. McClure; that said contract was partly oral and partly evidenced by an instrument in writing, designated, "Agreement of Contract Between Atlas Life Insurance Company, Tulsa, Oklahoma, and T. F. Foster, November 21, 1925," and being as follows, to wit:

"It is hereby agreed that the Atlas Life Insurance Company employs T. F. Foster as agency supervisor, to contract with, instruct, and assist agents for the Atlas Life Insurance Company.

"T. F. Foster is to devote his entire time to the duties of the Atlas Life Insurance Company, and is to receive instructions from the home office of said company.

"For his services, the Atlas Life Insurance Company agrees to pay Mr. Foster's expenses and a salary of three hundred dollars ($ 300) per month; and a first year's bonus of one dollar ($ 1) per thousand on the insurance written and paid for by agents contracted by Mr. Foster; and a renewal commission of two and one-half per cent. (2 1/2%) for nine years on premiums of such insurance as it is renewed.

"Accepted:

H. L. McClure, President.

"T. F. Foster."

¶3 Said plaintiff further alleged that before defendant would execute said contract and deliver the aforesaid instrument, said defendant demanded of plaintiff, and it was orally agreed between them, that he would work permanently for said defendant, and would help build up the defendant's insurance company in the state of Oklahoma; that he would surrender the valuable contract he had with the Voluntary State Life Insurance Company, with which company the plaintiff had at said time already acquired valuable renewals worth several thousand dollars; that it was orally agreed to, as a condition precedent, that the plaintiff surrender all of his said contractual rights with said Voluntary State Life Insurance Company, upon plaintiff's oral agreement to stay with the defendant permanently and help build up the said Atlas Life Insurance Company; that by the terms of said contract the said plaintiff became the agency supervisor of the defendant, and was to receive a salary of $ 300 per month and a first year's bonus of $ 1 per thousand upon all insurance written and paid for by agents contracted by plaintiff, and, in addition thereto, a commission of 2 1/2 per cent. for nine years on premiums of each policy so written and renewed; that in accordance with the terms of said contract said defendant established an office in the city of Oklahoma City for this plaintiff, and furnished and equipped the same for plaintiff without charge to plaintiff, and plaintiff was put to work by the defendant, operating in Oklahoma county and in neighboring counties, being all the counties traversed by the Rock Island lines running north and south from Kansas to Texas, and all counties traversed by the Santa Fe lines running from Kansas to Texas, and all counties lying between said lines, as well as Pottawatomie, Lincoln, and Payne counties; that said plaintiff in accordance with said contract proceeded to carry out and comply with the provisions of the same, and in an efficient manner to build the Atlas Life Insurance Company; and proceeded to make his connection with it permanent, knowing at said time that, under the insurance provisions of the statutes of Oklahoma, his contract could not last longer than five years, unless he made good and obtained a renewal of same on account of his efficient service with said company during said five-year duration.

¶4 Plaintiff further alleged that, on or about the 1st day of June, 1926, defendant breached said contract, canceled the same, took plaintiff out of said services, and discharged him under protest of said plaintiff, and other allegations not necessary for the determination of this cause. Plaintiff prayed for damages against said defendant in the sum of $ 100,000, with interest from the 1st day of June, 1926, at the rate of 6 per cent. per annum.

¶5 To this amended petition, the defendant filed a motion to strike certain portions of plaintiff's amended petition and to make said amended petition more definite and certain in certain particulars, which motion was overruled by the trial court. Thereafter defendant filed its demurrer on the 17th day of September, 1927, setting forth in said demurrer the following grounds:

"(a) Said allegations are wholly insufficient to allege the making of a contract for permanent employment, or for five years, or longer.

"(b) Such alleged permanent contract, or a contract for more than five years, would be wholly unreasonable and void, and beyond the power and authority of the said president of said company to make and execute, and same would be void for lack of mutuality.

"(c) It appears from the face of said amended petition that such alleged demand, agreement, condition, understanding, contemplation and view were oral and therefore insufficient and in violation of the statute of frauds, to wit: Section 5034, subdivision 1st, of the Compiled Oklahoma Statutes 1921, because not to be performed within a year from the making thereof.

"(d) Such alleged permanent contract, or a contract to last more than five years, would be in violation of the insurance laws of Oklahoma, and especially of section 6717 of the Compiled Oklahoma Statutes 1921.

"(e) It appears from the face of said amended petition that said alleged demand, agreement, condition, understanding, contemplation, and view as to the term or duration of said contract, were oral, and therefore insufficient and cannot vary, add to, or alter the terms of the written contract, exhibit 'A', sued upon by plaintiff, and were prior to the making of said written contract, and said exhibit 'A' controls over said allegations, and the said written contract is a contract at will, or at most a contract of monthly hiring, and the defendant had a legal right to terminate same as and at the time alleged, without liability to plaintiff."

¶6 This demurrer was overruled, and on the 1st day of December, 1927, said defendant filed an answer denying each and every material allegation contained in the amended petition, etc.

¶7 On December 5, 1927, plaintiff filed his reply to the answer of the defendant, and on June 14, 1928, said cause came on for trial, a jury was impaneled, opening statements of counsel for plaintiff and defendant were made to the jury, and plaintiff was sworn as a witness; thereupon, counsel for defendant objected to the introduction of any testimony on the ground that the amended petition did not state a cause of action in favor of plaintiff and against the defendant. Said objection was then argued and the court sustained the objection and refused to permit plaintiff to introduce any evidence, dismissed the jury, rendered and entered judgment for defendant, and dismissed the case at the cost of plaintiff, to all of which action of the court plaintiff duly excepted, gave notice of his intention to file motion for new trial and appeal from the judgment and final order of said court.

¶8 All of the plaintiff's assignments of error are based upon and relate to the error of the district court in sustaining an objection to the introduction of any testimony on behalf of plaintiff. Plaintiff's suit was for the alleged wrongful cancellation of a certain contract of employment...