Lewis v. Finetex, Inc.

• Decision Date: 08 March 1977
• Docket Number: Civ. A. No. 76-267.
• Court: U.S. District Court — District of South Carolina
• Parties: Neville P. LEWIS, Plaintiff, v. FINETEX, INC., Defendant.

488 F. Supp. 12

Neville P. LEWIS, Plaintiff, v. FINETEX, INC., Defendant.

Civ. A. No. 76-267.

United States District Court, D. South Carolina, Greenville Division.

March 8, 1977.

Robert M. Ariail, Greenville, S. C., for plaintiff.

Carl G. Ferguson, Leatherwood, Walker, Todd & Mann, Greenville, S. C., for defendant.

ORDER

CHAPMAN, District Judge.

This is an action to recover for the alleged breach of an employment contract. It is now before the Court on defendant's motion for summary judgment on the grounds that plaintiff seeks recovery for the alleged breach of an oral employment contract where the defendant purportedly agreed to hire the plaintiff for a period of 18 months. Since there is no written memorandum evidencing the duration of plaintiff's employment, the defendant asserts that the agreement is violative of the statute of frauds, S.C.Code § 11-101(5) (1962), prohibiting actions "upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement . . . or some memorandum thereof . . . shall be in writing and signed by the party to be charged therewith."

The plaintiff contends that a letter setting forth most of the terms of the employment contract written to the plaintiff by the defendant's agent on July 16, 1975, but not mentioning its duration, is a sufficient "written memorandum" to avoid the statute and that parole evidence should be admissible to establish the duration of the contract. Alternatively, he contends that if the letter is the contract, then the statute which applies only to oral contracts is inapplicable and parole evidence should be admissible to establish the ambiguity in the contract as it relates to the duration of employment.

Assuming plaintiff adopts the approach in his first cause of action that the contract is an oral contract of employment for not less than 18 months, is the letter of July 16, 1975 from the defendant's agent a sufficient memorandum to take the contract out of the statute of frauds? It is clear that an oral contract of employment for 18 months, is within the statute of frauds since it is incapable of performance within one year. Joseph v. Sears, Roebuck & Co., 224 S.C. 105, 77 S.E.2d 583 (1953). However, a written memorandum, in any form including written correspondence, is sufficient to take the contract out of the operation of the statute if signed by the party to be charged with the agreement and if the writing contains all of the essential terms of the contract. Barr v. Lyle, 263 S.C. 426, 211 S.E.2d 232 (1975); Cash v. Maddox, 265 S.C. 480, 220 S.E.2d 121 (1975). Here, the letter of July 16, 1975 is signed by the defendant's agent and contains a detailed account of the terms agreed upon. There is, however, no reference to the duration of the plaintiff's employment with the defendant. If the duration of employment is an essential term of the contract, then it may not be proven by parole evidence and the contract will be within the statute. Barr v. Lyle, supra; Cash v. Maddox, supra. Under the theory advanced by the plaintiff, the duration of plaintiff's employment with the defendant is an essential element of his employment contract since it serves as the very basis of his breach of contract claim—that the defendant terminated plaintiff's employment prior to the expiration of 18 months. The cases upon which plaintiff relies are inapposite. Speed v. Speed, 213 S.C. 401, 49 S.E.2d 588 (1948) stands for the proposition that time is not of the essence in a contract to convey land since in contracts to sell land, the law implies that the conveyance will be made within a reasonable time. Accord, McMillan v. McMillan, 77 S.C. 511, 58 S.E. 431 (1907).

Alternatively, assuming plaintiff adopts the approach in his first cause of action that the letter of July 16, 1975, is the written contract, would parole evidence be admissible to show the duration of plaintiff's employment? If the letter of July 16, 1975 is the written contract, as plaintiff contends in his second theory, then the contract was "terminable at will" since no provision as to the duration of plaintiff's employment was in that letter.¹ Since it would be terminable at any time by the parties, it could be performed within a year from the date of its inception, thus removing it from the operation of the statute. See e. g., Weber v. Perry, 201 S.C. 8, 21 S.E.2d 193 (1942); McLellan v. McLellan, 131 S.C. 245, 126 S.E. 749 (1925). See also Annot., 104 A.L.R. 1006, 1007 (1936). However, parole evidence would not be admissible to establish the alleged 18 month term of employment,...