Lasser v. Grunbaum Bros. Furniture Co., 32929

• Court: United States State Supreme Court of Washington
• Writing for the Court: HILL; HAMLEY
• Citation: 46 Wn.2d 408,281 P.2d 832
• Parties: B. J. LASSER, Appellant, v. GRUNBAUM BROS. FURNITURE CO., Inc., a corporation, and Schoenfelds', Inc., a corporation, Respondents.
• Docket Number: No. 32929,32929
• Decision Date: 01 April 1955

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.

Page 409

[281 P.2d 833] 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.'

Page 410

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 [281 P.2d 834] 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

Page 411

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....