Mayer v. King Cola Mid-America, Inc.

• Decision Date: 01 November 1983
• Docket Number: No. 45794,MID-AMERIC,INC,45794
• Citation: 660 S.W.2d 746
• Parties: 114 L.R.R.M. (BNA) 3474 Theodore MAYER, Appellant, v. KING COLA, Respondent.
• Court: Missouri Court of Appeals

Page 746

660 S.W.2d 746

114 L.R.R.M. (BNA) 3474

Theodore MAYER, Appellant, v. KING COLA MID-AMERICA, INC., Respondent.

No. 45794.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 1, 1983.

Edward C. Cody, St. Louis, for appellant.

Stephen Higgins, St. Louis, for respondent.

STEPHAN, Judge.

Defendant's motion for a directed verdict at the close of all the evidence was sustained as to Count I of the petition, and plaintiff appeals. We affirm.

Plaintiff Theodore Mayer is experienced in the soft drink business, and has worked in that business since 1956. Plaintiff was employed by Pepsi Cola International for many years, and worked abroad setting up and managing soda franchise operations. In 1978, he returned to the United States and eventually was employed by Double Cola as Vice President of Marketing. After Mr. Mayer resigned from Double Cola, in January 1980, he was contacted by Linda Leary, then secretary and later president of defendant King Cola Mid-America, Inc. She inquired as to his interest in a position as general manager of a new soda franchise in St. Louis. On February 2, 1980, plaintiff met with Ms. Leary. A three-year employment contract was discussed with compensation to be set at $40,000 the first year and $45,000, and $50,000 in each succeeding year, plus an additional commission based on sales. In addition, defendant promised to pay plaintiff's moving expenses up to $5,000. Plaintiff recovered judgment for these expenses as prayed for in his Count II, and they are not an issue here. Plaintiff agreed to work for defendant, and moved from his home in Chattanooga, Tennessee to St. Louis. He began work for defendant in February, 1980; and in accordance with the negotiations, he awaited a written contract. No written agreement, however, was executed. The relationship between plaintiff and defendant deteriorated in the months that followed. In late April, or early May, Ms. Leary informed plaintiff that he was not going to be given a contract. A few weeks later, plaintiff was asked to resign; when he refused, he was terminated.

Plaintiff contends that the granting of defendant's motion for directed verdict, predicated as it was upon the Statute of Frauds, was error. Plaintiff maintains that sufficient evidence was adduced at trial for the jury to consider his claim for relief on the basis of (1) promissory estoppel, or (2) on the grounds that various writings executed by the parties during the negotiations amounted to a written contract. In deciding whether the trial court erred in sustaining defendant's motion for a directed verdict at the close of the case, we view the evidence in the light most favorable to the plaintiff, giving such evidence the benefit of any and all reasonable inferences, and disregarding defendant's evidence except insofar as it might aid plaintiff's case. Grossman Iron & Steel Co. v. Bituminous Casualty Corp., 558 S.W.2d 255, 258 (Mo.App.1977). Even under such standard of review, we cannot say that the trial court erred in sustaining defendant's motion for directed verdict.

At the outset, we note that the contract upon which plaintiff sued is clearly one contemplated by the Statute of Frauds, § 432.010, RSMo 1978. That section provides in part: "No action shall be brought ... upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized ..." Plaintiff's theory was that his was a contract of employment for a term of three years with annual increases in base compensation with an additional commission of undetermined amount. Although a formal document memorializing the agreement was prepared by one of defendant's attorneys, it was never signed by plaintiff or a representative of defendant. As plaintiff correctly argues, the absence of signatures on one such document is not fatal in and of itself. "It is not essential that the memorandum be contained in a single document. The essential elements may be contained in a series of writings or documents." Bayless Building Materials Company v. Peerless Land Company, 509 S.W.2d 206, 211 (Mo.App.1974). When separate documents are relied on to establish the existence of an agreement, they must be connected by express reference to one another or by clear implication established through their respective contents. Arnold v. Broadmoor Development Co., 585 S.W.2d 564, 566 (Mo.App.1979).

To meet such requirements, plaintiff introduced a number of "writings." We do not attempt to catalogue them all, but they included plaintiff's own notes taken during his initial meeting with Ms. Leary, defendant's corporate minutes showing plaintiff's election to the board of directors and appointment as vice-president of the corporation, and defendant's payroll record showing plaintiff's annual salary to be $40,000. We have examined all of these documents and have concluded that all they indicate is that, at the times in question, plaintiff was an employee-at-will. None of the documents refers to the formal contract prepared by defendant's attorney, none spells out the essential terms of the contract. The requirements of the Statute of Frauds are not met by the "other writings" in this case.

Plaintiff's alternative argument is that the doctrine of promissory estoppel excuses compliance with the requirements of the Statute of Frauds.

We acknowledge that the doctrine of promissory...