Joshua v. McBride, CA
| Decision Date | 24 September 1986 |
| Docket Number | No. CA,CA |
| Citation | 19 Ark.App. 31,716 S.W.2d 215 |
| Parties | Ernest P. JOSHUA d/b/a Tony's Doghouse, Appellant, v. Ronnie McBRIDE, Appellee. 85-497. |
| Court | Arkansas Court of Appeals |
Andrew L. Clark, Little Rock, for appellant.
Mays & Crutcher by Zimmery Crutcher, Jr., Little Rock, for appellee.
In this appeal from the Pulaski County Circuit Court the question is whether an employment contract for a definite term may be terminated by the employer because of the employee's short-term illness.
Appellee, Ronnie McBride, is a bandleader and entered into a verbal agreement with appellant, Ernest Joshua, whereby appellee would perform at appellant's nightclub six nights per week (Monday through Saturday) from May 7, 1984, through August 25, 1984. Appellee was to be paid $1,300.00 per week. Appellee obtained permission from the nightclub's manager, Richard Smith, to be absent from work on Saturday, June 2, 1984, so that he could get married that day. It was agreed that the club would find a replacement band and that appellee would not be paid for that night.
On Monday, June 4, 1984, appellee became ill with food poisoning and was unable to perform. His wife informed Richard Smith that appellee would be unable to perform that night and that he would be at work the next day. On June 5, 1984, appellee received a telephone call from Smith telling appellee to take two weeks off. Appellee attempted to resolve the matter with appellant, but they could not reach an agreement as to the amount due appellee and the contract was terminated. The appellant's son, Michael Joshua, testified that appellee was terminated because he was not at work on June 4, 1984. This was not denied by the appellant or his manager, Smith.
Appellee filed suit against appellant for damages for breach of contract in the amount of $14,300.00. After a trial before the circuit judge sitting as a jury, a judgment in the amount of $12,600.00 was entered in favor of appellee. In the judgment, the court made the following findings:
1. There was a verbal contract of employment between the parties;
2. There was no dispute as to the period of the contract; and
3. A personal service contract will allow for illness.
Findings of fact of a circuit judge sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence, and in making that determination, we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses and the weight to be given to their testimony. Jones v. Innkeepers, Inc., 12 Ark.App. 364, 676 S.W.2d 761 (1984); ARCP Rule 52(a).
On appeal, appellant does not question the amount of damages allowed but does argue that the court erred in holding that the contract involved would "allow for illness." It is appellant's contention that the parties had an "implied contract" which would include the requirement that appellee supply a replacement band during his absence on June 4, 1984. We do not agree that the contract between the parties was "implied," but think it was an express, verbal agreement that did not expressly include the requirement that appellee furnish a replacement band when he was absent. Parties, by their conduct, can enable a court to give substance to an indefinite term of a contract. "In essence, the court looks to the conduct of the parties to determine what they intended." Welch v. Cooper, 11 Ark.App. 263, 268, 670 S.W.2d 454 (1984).
In this case, there was testimony that in the past, when appellee and his band performed at appellant's club, appellee had been required to supply a replacement band when he was absent. However, there was no evidence that this obligation had ever been placed upon appellee in the event of an unforeseeable, short-term illness. Appellee was not required to supply a replacement band on June 2, 1984, when he got married and his absence on that night was a foreseeable event for which plans for an alternate band could have been made by appellee if appellant had so required. In light of these facts, we cannot say the circuit judge was clearly erroneous in failing to find an implied requirement that appellee supply a replacement band in the event of illness.
The appellant cites the cases of Newton v. Brown & Root, 280 Ark. 337, 658 S.W.2d 370 (1983) and M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980) for the proposition that he had the right to terminate appellee's employment without cause. However, in those cases, the employment relationships were terminable at will. Here, the contract was for a definite term and was not terminable at will. In Griffin v. Erickson, 277 Ark. 433, 436-37, 642 S.W.2d 308 (1982), the Arkansas Supreme Court stated:
Generally, a contract of employment for an indefinite term is a ...
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...to the conduct of the parties to determine their intent and to give substance to indefinite terms of a contract. Joshua v. McBride, 19 Ark.App. 31, 716 S.W.2d 215 (1986); Welch v. Cooper, 11 Ark.App. 263, 670 S.W.2d 454 The rule is well established that, where there is no provision as to th......
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