Gibbons v. Associated Distributors, Inc., 51179

• Decision Date: 09 May 1979
• Docket Number: No. 51179,51179
• Citation: 370 So.2d 925
• Parties: Mack G. GIBBONS v. ASSOCIATED DISTRIBUTORS, INC., d/b/a West Discount Building Materials Company.
• Court: Mississippi Supreme Court

Page 925

370 So.2d 925

Mack G. GIBBONS v. ASSOCIATED DISTRIBUTORS, INC., d/b/a West Discount Building Materials Company.

No. 51179.

Supreme Court of Mississippi.

May 9, 1979.

Roberts & Easterling, S. Wayne Easterling, Hattiesburg, for appellant.

Gray, Montague, Jackson, Pittman & Hammond, S. Robert Hammond, Jr., Hattiesburg, for appellee.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant, Mack G. Gibbons, appeals from a directed verdict rendered against him by the Circuit Court of Lamar County.

Appellant filed his declaration against appellee, Associated Distributors, Inc., d/b/a West Discount Building Materials Company, alleging that appellee owed him a balance of compensation earned through May, 1976. Defendant answered, denying the allegations of the declaration and alleging as an affirmative defense that appellant's cause of action, if any, was barred by the statute of frauds. At the conclusion of appellant's evidence, the court sustained the motion of appellee under its plea in bar and held that under appellant's evidence the claim was barred.

Mississippi Code Annotated section 15-3-1(d) (1972), provides as follows:

An action shall not be brought whereby to charge a defendant or other party:

(d) upon any agreement which is not to be performed within the space of fifteen months from the making thereof; or

unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.

Appellant's testimony and documents introduced therewith was the only evidence submitted by appellant. He testified that in 1970 he was induced to move from Fairhope, Alabama, to Lamar County, Mississippi, under an agreement of employment as manager of appellee's Hattiesburg, Mississippi, store. Appellee had sixty-seven discount building material stores over the southern states. According to the original agreement for the managing of the Hattiesburg store, appellant was to receive a total of a series of intricate base pay advances per week with a guarantee of a total salary of $45,000 per year. The Hattiesburg store was successful under appellant's management, and in 1974 the duly authorized representative of appellee requested appellant to move to Jackson, Mississippi, for two years and manage the store there, which store was losing a lot of money each year. According to appellant, he was reluctant to take his children from school and move to Jackson but he agreed to do so in the event his annual guarantee was increased to $55,000. This was agreed to by appellee and appellant moved to Jackson and took over the store there. According to appellant, the store immediately started making a profit and continued to do so.

The latter part of June, 1975, appellant received a letter dated June 26, 1975, from Stan Moseley, personnel manager for the appellee's entire company. This letter was as follows:

MEMO TO: Mack Gibbons

SUBJECT: Compensation Adjustment

The Jackson store has been classified as an existing B operation.

Base compensation for General Management at Jackson will be increased from $300 to $365 per week.

Your Profit Manager's base of $72.12 remains the same. Your Profit Manager's ROI guarantee decreases from $200 per week to $135 per week.

Car allowance of $50 per month remains the same.

Your guarantee for total performance in 1975 is $ .

The adjustment will take place in three periods in approximately equal increments.

August 2nd

October 4th

December 6th

/s/ Stm

Stan Moseley

It was appellant's testimony that by the letter the company was changing the Jackson store classification and operations and was changing his method of compensation and his employment agreement. He noted the changes as shown in the letter and noted that the total guarantee was left blank. He then called by telephone one Charlie White, vice president in charge of the region including the State of Mississippi, regarding what, if any, guarantee he, the appellant, was to receive as a result of the June 26, 1975, letter. According to appellant, White assured him that the guarantee would be $55,000 per year even though changes were being made in the base pay.

The letter of June 26 stated that adjustments in the agreement were to be made on August 2, October 4 and December 6. Pursuant to discovery, appellant had received completed forms regarding his employment with appellee. The multiple style of each of these forms was "New Hire Notice of Separation Change of Status Work Interruption." Included with these forms for different periods since the time of appellant's employment was a recapitulation sheet. This showed that appellant's guarantee was $55,000 per year until the August 2, 1975, adjustment which deleted this item and it was not included in the recapitulation or on the separate sheets thereafter. An analysis of the separate sheets and the recapitulation sheet shows that the various items of intricate base payments were changed as stated in Moseley's letter. Appellant, in his testimony, explained the basis for the...