Lasser v. Grunbaum Bros. Furniture Co., 32929

• Decision Date: 01 April 1955
• Docket Number: No. 32929,32929
• Parties: B. J. LASSER, Appellant, v. GRUNBAUM BROS. FURNITURE CO., Inc., a corporation, and Schoenfelds', Inc., a corporation, Respondents.
• Court: Washington Supreme Court

Page 408

46 Wn.2d 408

281 P.2d 832

B. J. LASSER, Appellant, v. GRUNBAUM BROS. FURNITURE CO., Inc., a corporation, and Schoenfelds', Inc., a corporation, Respondents.

No. 32929.

Supreme Court of Washington, Department 2.

April 1, 1955.

J. Kalina, Michael S. Curtis, Seattle, for appellant.

Monheimer, Schermer & Mifflin, Seattle, for respondents.

HILL, Justice.

This is an action for damages for breach of an alleged contract of employment. Quoting an instruction given by the trial court, '* * * the sole issue in this case is whether or not there was a contract of employment for a year certain between plaintiff and defendant corporations. * * *'

Plaintiff testified to an oral contract of employment as manager of a furniture store entered into about the middle of February, 1952. The offer made by an officer of the defendant corporations, as testified to by the plaintiff, was:

'* * * I'll pay you $18,000 a year, and I'll pay it in this manner: $15,000 a year to be divided in $1,250 monthly payments, which would be $15,000. At the end of the year you will receive $3,000.'

The plaintiff accepted this offer and went to work immediately. Plaintiff further testified that there was no discussion as to what would happen if he or the employer became dissatisfied.

There was nothing to contradict the plaintiff's testimony as to the terms of his employment, as the officer who had represented the defendant corporations in the transaction had died prior to the trial.

It is conceded that the plaintiff commenced work about the middle of February, and that he was discharged about the middle of June, and that he was paid for five months, February through June, both inclusive, at the rate of $1,250 a month, or $6,250.

The defendants offered no evidence bearing upon their alleged defenses of discharge for cause and failure to mitigate damages, so that if there was anything to go to the jury, it was as the instruction quoted at the beginning of this opinion stated, was there a contract of employment for one year. If there was such a contract, it had been breached and the damages were $11,750; if there was not such a contract, it was an employment terminable at will.

The jury returned a verdict for the defendant corporations, and the plaintiff appeals.

The respondents have urged at all times in the superior court and in this court that the appellant did not present sufficient evidence to take his case to the jury, and we must first examine that contention.

Both parties are agreed that a general or indefinite hiring is at will, and that either party may, at any time, terminate such a contract of employment.

There is a conflict of authority as to the effects of a provision for periodic compensation to an employee, where the contract provides that the employee shall be paid so much per week, month, or year, with nothing else to fix the time for which the employee is hired. Some cases hold that, under such circumstances, there is a contract for the period indicated; other cases treat the unit of time referred to merely as a means of measuring the compensation to be paid, and not the duration of the employment, and, in the absence of other circumstances or relevant facts, hold an agreement to pay so much a week, month or year, to be an indefinite hiring terminable at the will of either party. Savage v. Spur Distributing Co., Inc., 1949, 33 Tenn.App. 27, 228 S.W.2d 122. See annotations, 11 A.L.R. 469, 100 A.L.R. 834, 161 A.L.R. 717, 35 Am.Jur. 458, 459, Master and Servant, § 20. The latter cases represent the majority rule in the United States, and the rule which this court had adopted. See Davidson v. Mackall-Paine Veneer Co., 1928, 149 Wash. 685, 271 P. 878. In that case, the circumstance relied on by the employee to establish a hiring for a year was a custom in the industry to employ superintendents on a yearly basis, which custom we held was not established by the evidence. See, also, Rohda v. Boen, 1954, Wash., 276 P.2d 586.

What circumstances, or as Restatement, Agency, 1030, § 442, Comment b., says, 'relevant facts' can be considered in determining that an employment was for a fixed period, and what weight shall be given to them, cannot be determined by any hard and fast rule. 161 A.L.R. 713. The Restatement, in the comment referred to, gives a number of illustrations of relevant facts that might be considered in determining that an employment was for a fixed period. Only one of them seems of have any applicability to the present case, viz., 'or if the agency is an important one and of a kind such that a temporary appointment would not be likely to be made; * * *' This, however, would seem to be as consistent with a month-to-month as with a yearly term of employment. The relevant fact most strongly relied upon by the appellant to establish that he was employed by the year is that $3,000 of the $18,000 he was to receive was to be paid at the end of the year. A jury might well infer from such an arrangement that the purpose was to induce the employee to remain for the entire year, and to infer, further, that the parties intended the employment to be for that period. See Jones v. Manhattan Horse Manure Co., 1918, 91 N.J.L. 406 103 A. 984; Gressing v. Musical Instrument Sales Co., 1918, 222 N.Y. 215, 118 N.E. 627; Jones v. Pittsburgh Mercantile Co., 1928, 295 Pa. 219, 145 A. 80; D. Buchanan & Son v. Ewell, 1927, 148 Va. 762, 139 S.E. 483.

We conclude that this circumstance was sufficient to take the present case to the jury on the issue of whether there was a contract of employment for a year.

The jury, however, found that there was no contract of employment for a year, and its verdict is conclusive, unless there be merit in one or more of appellant's assignments of error. Certainly, there was no merit in appellant's contention that he was entitled to a judgment n. o. v.

We are satisfied that there was prejudicial error in the giving of two instructions. Instruction No. 8 read:

'If you find from the evidence that the agreement between the parties was to employ Mr. Lasser for a period of more than one (1) year, then you shall find for the defendants.' (Italics ours.)

This presented the issue of the statute of frauds, inasmuch as it was conceded that the contract of employment was oral. The provision of that statute which the court had in mind in giving this instruction was RCW 19.36.010 [cf. Rem.Rev.Stat. § 5825] which reads as follows:

'In the following cases any agreement, contract, and promise shall be void, unless such agreement, contract, or promise, or some note or memorandum thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized:

'(1) Every agreement that by its terms is not to be performed in one year from the making thereof; * * *.'

The only evidence to which the instruction could have referred was the following testimony of the appellant on cross-examination:

'Q. (By Mr. Schermer) Mr. Lasser, what was your understanding of the duration of your contract or agreement of employment with Grunbaum's made with Mr. Schoenfeld as its officer? A. Well, I understood I was to be employed for several years. I wasn't taking a position for one day or a week or a month, I was taking a steady position. Q. In other words, you thought that you were employed for several years? A. That's right.'

Whether this was, as his counsel urged, merely the appellant's way of expressing his expectation that he would continue in this particular employment for a number of years, or whether it was actually his subjective interpretation of the specific contract, it falls far short of establishing any agreement between the parties to employ the appellant for more than a year. There was no evidence by which the jury could have found that such an agreement existed, irrespective of what the appellant may have understood or believed; and there being no evidence to justify the instruction, it was prejudicial error to give it.

We are aware that the appellant's exceptions to this instruction were not on the ground which we have just stated made the instruction patently erroneous. The...