Hoffman Specialty Co v. Pelouze

• Decision Date: 16 June 1932
• Parties: HOFFMAN SPECIALTY CO.,Ino. v. PELOUZE.
• Court: Virginia Supreme Court

164 S.E. 397

HOFFMAN SPECIALTY CO., Ino.

v.PELOUZE.

Supreme Court of Appeals of Virginia.

June 16, 1932.

Error from Law and Equity Court of City of Richmond.

Suit by Henry L. Pelouze against the Hoffman Specialty Company, Inc. To review a judgment in favor of plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, BROWNING, and CHINN, JJ.

Williams & Mullen, Guy B. Hazelgrove, and Ralph T. Catterall, all of Richmond, for plaintiff in error.

Allen G. Collins, of Richmond, for defendant in error.

BROWNING, J.

The parties will sometimes be referred to as they were related in the trial court, plaintiff and defendant.

The plaintiff, Pelouze, instituted suit by petition for attachment and judgment against the defendant, Hoffman Specialty Co., Inc., in the law and equity court of the city of Richmond, Va., for the sum of $2,437.39, the balance claimed to be due him on account of unpaid salary.

The plaintiff was employed by the defendant as its Virginia and North Carolina representative, with headquarters in Richmond. The employment began on the 10th day of May, 1926, and continued until the 25th day of May, 1929, when it was terminated by the defendant. The fidelity of the plaintiff to his employer and his efficiency in his work were not questioned. His discharge was based upon the policy of the company to reduce its sales expense.

It will be observed that upon the date of the termination of the employment the plaintiff had worked for fifteen days on a new period of service; that is, his third year with the company expired on the 10th of May, 1929, and his resignation was requested on the 25th, of May, 1929, to take effect immediately. The letter of the company to the plaintiff on this subject contains this statement: "In view of the foregoing, we are asking that you submit your resignation to take effect at once, with the understanding that your salary will be continued until June 30th, 1929."

The plaintiff declined to tender his resignation, and returned a check, sent him by the company, for $114.71, which bore this notation: "Acceptance of this check indicates a settlement in full of all claims against this company as per our letter 6--20--29." The plaintiff, in returning the check, replied in part as follows: "I was originally employed by your company for one year beginning May 9th, 1926 and my salary after May 9th, 1927, became from year to year and therefore you could not properly discharge me during a current year and I could not resign without your consent during the current year."

The issue then between the parties is whether the company had the right to discharge the plaintiff on May 25, 1929, or was it obligatory and binding upon it to continue him in its employ until May 10, 1930, the end of another year. The pivotal question is whether the contract of employment was for a year or a month.

It was proven that the plaintiff had earned $700 in other employment during the portion of the year following his discharge, which the jury deducted from the amount sued for and returned a verdict for the plaintiff for the residue, $1,737.29, which verdict the trial court refused to set aside. The motion of the defendant was based on its assertion that the verdict was contrary to the law and evidence, that the court had misdirected the jury as to the law, had refused instructions which should have been granted, and had erred in not sustaining its motion to exclude the plaintiff's evidence.

In 28 R. C. L. 692, § 29, it is said: "The courts are not agreed as to the duration of a contract of hiring which specifies no term, but fixes compensation at a certain amount per day, week, month, or year. In some jurisdictions it is held that such a contract, in the absence of other circumstances controlling its duration, is an indefinite hiring only, terminable at the will of either party. * * * However, in a large number of cases where the term of employment was not provided for, it has been held that a hiring at a specified rate per year, month, or week imports a hiring for such full period. Thus an offer by telegraph, 'If $1000.00 a year is an inducement, come immediately. Answer, ' and the answer, "Will accept $1000.00 a year, ' are communications which unexplained show a single contract for a year. And a contract of hiring was held to have been made for the term of a year, although the salary was fixed at a certain rate per month, when a clause in the agreement provided for an increase of salary at the end of the first year if satisfaction was given."

In Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269, 9 So. 188, 30 Am. St. Rep. 55, it is said in the syllabus: "If one is employed to be paid by the month a designated price, this constitutes an entire contract by the month, which the employer cannot terminate at will, and under which he is liable for a month's wages if he discharges his employee without cause before the expiration of the month."

In the opinion in the above case, Beach v. Mullin, 34 N. J. Law, 344, is cited as follows: "A contract to pay $16 for a month's service is as entire in its consideration as is a contract to pay a certain sum for a single chattel. * * * If the payment of monthly or weekly wages is the only circumstance from which the duration of the contract is to be inferred, it will be taken to be a hiring for a month or a week."

In Moss v. Decatur Land & Furnace Co., supra, the defendant discharged the plaintiff in the middle of the month under the claim that the hiring was by the day at the rate of so much per month. In the case in judgment the claim is that the hiring was by the month at the rate of so much per year, provided the plaintiff's version of the contract is the true one, which, however, the defendant does not concede.

In an annotation to the case of Warden v. Hinds, 90 C. C. A. 449, 163 F. 201, 25 L. R. A. (N. S.) 533, is the following: "In Graves v. Lyon Bros. & Co., 110 Mich. 670, 68 N. W. 985, there had been an employment by the month extending over two years, and, at the beginning of the next year, the plaintiff was informed by his employer's agent that his 'pay would have to be reduced to $600 for the year.' An action to recover for his wrongful discharge before the end of the year resulted in the plaintiff's favor, the court taking the view that it was a fair inference that the contract was for a year."

In the case of Norton v. Cowell, 65 Md. 359, 4 A. 408, 57 Am. Rep. 331, it is stated in the syllabus: "An offer of employment was made in a letter stating that the wages would 'be one hundred dollars per month, ' 'and if you give me satisfaction at the end of the first year, I will increase your salary accordingly.' Held, an offer for a year." In the body of the opinion it is said: "As will be observed, there is no express limitation in the letter as to the term of service, though the wages were to be at the rate of $100 per month. But stipulations for the payment of wages quarterly, monthly, or even weekly, are not inconsistent with a yearly hiring. Fawcett v. Cash, 5 B. & Ad. 908. For as said by Lord Kenyon, C. J., in the case of The King v. Birdbrook, 4 T. R. 245, 'Whether the wages be to be paid by the week or the year can make no alteration in the duration of the service, if the contract were for a year.' "

Citation of eases, in which there were similar holdings, from the courts of last resort of many states, might be multiplied, but we do not deem it necessary. True it is that the authorities are not in agreement, but we think that the sounder view is that, under the circumstances in the case in judgment, the hiring was for a year, and this conclusion is smartly strengthened when we consider the facts shown by the evidence.

The testimony of the plaintiff and that of the defendant's vice president and general sales manager, C. V. Haynes, with...