Hurt v. Standard Oil Co. of Tex.

• Decision Date: 16 July 1969
• Docket Number: No. 6029,6029
• Citation: 444 S.W.2d 342
• Parties: E. L. HURT, Appellant, v. STANDARD OIL COMPANY OF TEXAS, Appellee. . El Paso
• Court: Texas Court of Appeals

Page 342

444 S.W.2d 342

E. L. HURT, Appellant, v. STANDARD OIL COMPANY OF TEXAS, Appellee.

No. 6029.

Court of Civil Appeals of Texas El Paso.

July 16, 1969.

Rehearing Denied Sept. 10, 1969.

Lipscomb, Fisk, Cox & Ehrlich, Abner Lipscomb, El Paso, for appellant.

J. F. Hulse, El Paso, for appellee. Scott, Hulse, Marshall & Feuille, El Paso, of counsel.

OPINION

WARD, Justice.

This is an action for breach of a contract to employ the appellant permanently to age 65. Trial was to a jury, and at the conclusion of all the testimony the trial court granted the appellee's motion for an instructed verdict. We affirm the judgment of the trial court.

Appellant went to work for the appellee at its El Paso refinery in the year 1930, when he was a young man, and according to his testimony, at all times while he was employed he was encouraged by his superiors to make his employment a 'lifetime work', or a 'career of employment', and testified to the refinery superintendent telling him, a year or so after he went to work, that he felt that a career employee would have a job to the age of 65. According to his own testimony, his original employment was one at will, and he does not claim it changed until 1952, when appellee began inaugurating benefits for its employees in addition to those previously in existence. Company booklets and various printed brochures issued by the appellee to the appellant and other company employees stressed and encouraged the employees to make their employment a career employment. The appellant read the literature and availed himself of the benefits, and determined and decided to make his lifetime work with the company his working career, and to remain there for his entire working life and until retirement at age sixty-five.

After some 34 years of service, and when he was 54 years of age, the appellant was given early retirement on August 1, 1964, and in 1966 filed the present action alleging that his early retirement was wrongful.

Appellee's motion for instructed verdict was to the effect that none of the elements of a contract of employment to a certain age had been established, as there was no definite offer, no acceptance, and no consideration for the contract; that the evidence was to the effect that all employees were hired on an indefinite basis and not for any specified term or time; that after 1951 no corporation could hire an employee for more than a year at a time without affirmative action by the board of directors, and there is no evidence in the case showing any such action; that at the time of the termination of the employment there was an accord and satisfaction or a novation by virtue of certain payments to the appellant and certain benefits which accrued to him on his early retirement; that his acceptance of the benefits constituted an estoppel against the assertion of the appellant's claim, and that the Statute of Frauds precludes a claim of this nature.

Our view of this so-called contract of employment until the age of 65 is that it is within the terms of the Statute of Frauds; that any written memoranda relied on to constitute a claim of permanent employment until the age of 65 must be interpreted together, as a whole, and that they do not constitute any such offer on the company's part; and, finally, that there has been an effective waiver and estoppel on the part of the appellant in this case. This precludes any necessity to discuss the many other aspects of the case as raised in the appellee's motion for an instructed verdict which was granted by the trial court.

It is the appellant's position that there was a contract of employment, either express or implied, made in 1952 between the parties where, as a career employee, he would have employment until his retirement age when he became 65. The question for our first determination is whether or not this contract is within the terms of the Statute of Frauds, Section 5, Article 3995, Revised Civil Statutes of Texas; and we hold that the contract relied on is within the Statute, as it could not have been performed within one year from the date of its making. At that time, in 1952, the appellant was 42 years of age and his retirement, at age 65, would have taken place in the year 1975. We are thus confronted at the start with the two questions presented to the Supreme Court in the case of Chevalier v. Lane's, Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R.2d 1045: '* * * First, whether the agreement is within the prohibition of the statute, notwithstanding the possibility of termination within less than a year by reason of plaintiff's death, which would obviously render further performance of such an agreement impossible; and, secondly, whether, if within the statute, the agreement is nevertheless enforceable by reason of the performance actually rendered by the plaintiff'. As the answer to the first question, the court resolved the conflicts then existing in the state to the majority rule in this country, and held the following:

'* * * We accordingly restate the rule so that where, by the terms of the oral agreement, its period is to extend beyond a year from the date of its making, the mere possibility of its termination by operation of law within the year, because of death or other fortuitous event, does not render paragraph 5 of the Statute inapplicable, but that, on the other hand, where the agreement may, by its own terms, be fully performed within the year, as, for example, the agreement in Wright v. Donaubauer, 137 Tex. 473, 154 S.W.2d 637, for employment during the term of a man's life, the Statute does not apply.'

The court also held that the agreement was not enforceable by reason of the performance there actually rendered by the plaintiff.

Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, was a case based upon an implied contract for a reasonable period of time which was found by the jury to be three years, and is also authority for our present position. In the present case the appellant alleges and proves that the contract was one of permanent employment to age 65. Since the finding of an implied contract for a reasonable time, to-wit, three years, is within the Statute of Frauds, as in the Hall case, it would seem that the pleading and proof of an implied contract for a term lasting from 1952, at age 42, until the appellant would be 65 years of age in 1975, is likewise within the Statute. As said in Hall, the basic question is how long, in units of time, performance under the contract was to last and any reasonably clear method of ascertaining this fact could properly be used. The only reasonably clear method of ascertaining the answer in the present case is one based on the age of the appellant; he entered a contract that would terminate in 1975.

Gilliam v. Kouchoucos, 161 Tex. 299, 340 S.W.2d 27, 88 A.L.R.2d 693, is additional authority for our present position. There, the oral contract of employment was to continue for a term of ten years, but the contract specifically provided that it would be terminated on the death of the plaintiff. This, too, was held to be within the terms of the Statute. The Supreme Court there said that the contract of employment is for a term of 10 years; that the Statute thus has application only to contracts which are terminated by performance, and does not apply to contracts which may be terminated within a year by some means other than performance. All personal...