Gudenau v. Farm Crest Bakeries, Inc.

• Decision Date: 18 September 1934
• Docket Number: No. 75.,75.
• Citation: Gudenau v. Farm Crest Bakeries, Inc., 268 Mich. 399, 256 N.W. 462 (Mich. 1934)
• Parties: GUDENAU v. FARM CREST BAKERIES, Inc., et al.
• Court: Michigan Supreme Court

268 Mich. 399

256 N.W. 462

GUDENAU

v.FARM CREST BAKERIES, Inc., et al.

No. 75.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Wayne County; Arthur Webster, Judge.

Action by Edward J. Gudenau against the Farm Crest Bakeries, Incorporated, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Fildew & De Gree, of Detroit, for appellant.

Carey, Armstrong, Weadock & Essery, of Detroit (Joseph J. Marshall, of Detroit, of counsel), for appellees.

BUTZEL, Justice.

Edward J. Gudenau brought suit against Farm Crest Bakeries, Inc., Orchard Farm Pie Company, Jersey Farm Baking Company, all corporations, who, by stipulation, may be considered, for the purposes of this suit, as one person and referred to as the ‘defendant.’ Plaintiff had been a salesman for the Grennan Cake Corporation, in which P. H. Grennan, Ray Grennan, and K. L. Grennan had been interested. P. H. Grennan and Ray Grennan became associated with defendant. One Arthur L. Force has also left the service of the Grennan Cake Company and became defendant's regional sales manager. Plaintiff had worked for the Grennan Cake Corporation for approximately twelve years and was receiving $65 per week, when he claims Force asked him to give up his position as salesman with the Grennan Cake Corporation and accept employment with defendant at a salary of $70 per week; that after several interviews with Force he agreed during the middle of the last week of August, 1930, to accept the position and was promised employment for an entire year. He claims that Force wanted him to come to work at once, but he deemed it proper to give some notice to his former employer, and he therefore was unwilling to come to work until the following Monday in September. The contract was entered into for a year's employment beginning the following week. It was not to be performed within one year. More than a year would elapse from the time it was entered into until the date agreed upon for its expiration. On the following Monday in September plaintiff reported for duty to Force, drove around with him for several days, but was put off as to the time when he should begin active work; Force offering various excuses from day to day, and finally refusing to see him. Plaintiff claims that, after being unsuccessful in efforts to secure other work in order to minimize his losses, he brought suit for a year's salary at $70 per week.

The case was heard without a jury, and on motion, the trial court was forced to direct a judgment in favor of defendant because the alleged agreement was not to be performed within one year and therefore was void under the statute of frauds (Comp. Laws 1929, § 13417, subd. 1).

Plaintiff in his appeal contends that the record shows that the contract was subsequently made and did not begin until the Monday that he went to work. We must take the statements as made by plaintiff as true inasmuch as judgment was rendered against him at the conclusion of his testimony. We are not at all unimpressed with the equities of the claim as set forth by plaintiff, but neither the trial judge nor we can overlook the provisions of the statute of frauds. A very careful reading of the record shows that the contract extended over a year. Plaintiff did at times intimate that the contract was made the Monday he went to work, but he explained his testimony by immediately referring back to the contract that had been made the previous week. He did not make contradictory statements, but explained them by saying that the contract sued upon was the one made the previous week before he reported for work. Counsel claim that plaintiff became confused, but his testimony is plain, direct, and to the point. We quote the following excerpts:

‘Re-Direct Examination.

‘By Mr. Fildew:

‘Q. You say that on the first Monday you went to work, you did discuss the definite terms of the agreement with Mr. Force? A. Yes, sir.

‘Q. And how long did Mr. Force agree that you were employed? A. Mr. Force says that it would be permanent, but he would take care of the year contract.

‘Q. What salary did he agree that he would pay you? A. $70.00 per week.

‘Q. And that is the contract you are suing on? A. Yes, sir. * * *

‘Q. And you claim that the first day you went to work you had a definite agreement on the terms of employment? A. A definite agreement between Mr. Force and I.

‘Q. And that is the contract you are claiming here? A. That is the contract I am claiming.

‘Mr. Fildew: That is all.

‘Re-Cross Examination.

‘By Mr. Weadock:

‘Q. The contract that you are suing on here is a contract for a year's employment? A. For a year's employment.

‘Q. As sales manager? A. As sales manager.

‘Q. At $70.00 a week? A. Yes, sir.

‘Q. And that contract was made with Mr. Force only? A. Mr. Force only.

‘Q. And that was made in the latter part of August? A. Yes, sir.

‘Q. And as soon as the contract was made, you put in your resignation? A. I did.

‘Q. And that resignation took effect a few days afterward? A. Yes.

‘Q. On a Saturday? A. Yes.

‘Q. The following Monday, in accordance with the agreement that you had made with Mr. Force, you reported at the plant? A. Yes.

‘Q. And on that Monday talked over with him the terms of the agreement? A. Yes.

‘Q. There was no change? A. No.

‘Q. No other contract made? A. No.

‘Q. And the contract you are suing on was the one you claim to have made with him before you made your resignation; you insisted on having a definite agreement before you would resign, you said. Is that correct? A. I did.

‘Q. You had to be protected? A. Yes.

‘Q. Now did it not strike you that that contract was a bit unusual, Mr. Gudenau? A. No.

‘Q. You never heard of another one, you had never had one like it? A. Well, no. I had not another contract from...