Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co., 23207

• Decision Date: 06 February 1961
• Docket Number: No. 23207,23207
• Citation: 344 S.W.2d 639
• Court: Missouri Court of Appeals
• Parties: John W. MORSINKHOFF, Plaintiff-Respondent, v. DE LUXE LAUNDRY & DRY CLEANING COMPANY, and Samuel Paul, Defendants-Appellants.

Page 639

344 S.W.2d 639

John W. MORSINKHOFF, Plaintiff-Respondent, v. DE LUXE LAUNDRY & DRY CLEANING COMPANY, and Samuel Paul,

Defendants-Appellants.

No. 23207.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1961.

Jack N. Fingersh, Jacob Brown, Kansas City, Brown & Koralchik, Kansas City, of counsel for appellants.

James S. Formby, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiff had a verdict and judgment for $1,280.12. His claim arises from the breach of an alleged contract for personal employment, which he asserts is actionable under the doctrine of promissory estoppel. Defendants contend that plaintiff's evidence failed to make a submissible case and that their motions for directed verdict submitted at the close of all the evidence (and for similar after-trial motions) should have been sustained. The refusal of the trial court to do so is the sole basis of this appeal.

It is true, as plaintiff asserts, that on appeal of a jury tried case the Court does not weigh the evidence. Siegel v. Ellis, Mo., 288 S.W.2d 932. In determining whether the trial court erred in overruling defendants' motion for directed verdict it is the duty of the appellate court to consider only the evidence most favorable to plaintiff, together with the reasonable inferences to be drawn therefrom, and to disregard the evidence of defendant unless it aids plaintiff's case. Eddy v. Missouri Public Service Co., Mo.App., 309 S.W.2d 4, 9; Sibert v. Boger, Mo., 260 S.W.2d 569. And since defendants on appeal contend that this judgment should be reversed outright, we must determine if plaintiff's evidence makes a submissible case, either on the theory submitted at the trial, or on any theory.

The pleadings established that defendant DeLuxe Laundry and Dry Cleaning Company is a Missouri Corporation, and defendant Samuel Paul is an 'officer, employee and agent of that corporation'. On April 29, 1955, the plaintiff, John Morsinkhoff, was employed as plant engineer and supervisor by Crawford Manufacturing Company in Kansas City, Kansas, at a salary of $7,200 per year, plus an annual bonus. He had been so employed for approximately five years. About the first of January, 1955, he had a discussion with Mrs. Vera Carter, operator of an employment agency. He was seeking an improved employment situation. Early in April he filed with her a written resume of his qualifications and experience. On the evening of April 29, 1955, and pursuant to a tentative appointment arranged by Mrs. Carter, the plaintiff had a meeting with defendant Samuel Paul and his father, in the offices of defendant corporation. It is conceded that these parties never executed any written contract of employment and that there exists no letter or written memorandum of any kind relating to any employment agreement. Since, therefore, plaintiff's case factually rests entirely upon what transpired at this meeting, we shall recount in some detail the events and conversation which there took place as told by the plaintiff himself. He said that Mr. Paul and his father 'outlined to me the business of the DeLuxe Laundry'; told him they planned to expand; spoke of the amount of work; and the father expressed the belief that young Mr. Paul needed someone to help him supervise and manage the business. The father took plaintiff on a tour of the plant. Plaintiff gave them an outline of his working experience, not only with Crawford, but with the Piedmont Shirt Company in North Carolina. Plaintiff stated that the elder Paul said to Samuel Paul: 'This is the man we need for the job'. Describing the interview further, plaintiff said he brought up the question of salary. He told them his earning at Crawford approximated $10,000 per year; that some discussion followed and Samuel Paul remarked: 'Well, on the basis of $200 a week salary, that will give you the $10,000 per year'.

These specific questions were put to plaintiff and he made the following answers:

'Q. * * * My question was what, if anything, was said regarding the term of the employment, not the time to begin, but the term of the employment, what period was it to cover? A. Oh, a year.

'Q. And in discussing salary was that discussed---- A. In terms of a year.

'Q. --in terms of a year? A. $10,000 a year.

'Q. Now, during this discussion what, if anything, was said concerning when you might come to work? A. I told them, Mr. Paul and his father, that at the present time I was employed, but before I could go to work for them, because of a verbal obligation that I had with Crawford Manufacturing Company when I accepted the job that I presently had with them, that when and if I ever decided to resign that I would give them a month's notice, * * * and such being the case, that I, therefore, couldn't possibly come to work before the first of June, and rather than that, since I hadn't had any vacation for a year that I would like to take the first week in June as a vacation period and start to work June 6, 1955. * * *.

'Q. What, if anything, did Mr. Paul say to you concerning hiring you or employing you on June 6, 1955? * * * A. I still don't understand your question, if I may say so.

'Q. You advised Mr. Paul that you would like to come to work June 6, 1955? A. Correct.

'Q. What was his reply to that? A. There was no objection made at that time. * * *.

'Q. Just in your own language relate the conversation which was had between you and Mr. Paul concerning whether you would be employed and, if so, when? A. When the salary was agreed to, I told Mr. Paul that I would come to work for them as of June 6, at which time, as I said, the exact words that he used I don't know, but we shook hands and I said, 'I'll see you June 6".

On cross-examination these additional questions were propounded with the following responses:

'Q. There was nothing in those conversations, Mr. Morsinkhoff, that dealt with the period of employment, was there? * * * A. I have to say that in the agreement of the terms of pay that it was on the basis of a year employment.

'Q. Do I understand that you infer from the conversations about the pay that the employment would be for a year? A. Yes, sir. * * *

'Q. Was there any conversation that if they wanted to terminate your employment, if it began, that they could terminate it at any time they wanted? A. I presume so, yes, sir. I have never been terminated from one yet though.

'Q. I mean was there anything in the conversations that in any way indicated that they could not terminate the employment any time they wanted? A. No, sir. No, sir'.

Mr. Morsinkhoff said that about two days later on May 1st, he talked with Crawford about leaving that employment; that he gave them a month's notice of his intention to terminate, did terminate and his last day of work there was on May 27th. He stated that on May 3, he called Mr. Paul by telephone 'to ascertain that everything, the starting date of my work was satisfactory and to also reaffirm him that I had made arrangements that I would be able to start at that date'. Plaintiff did not say what response was made by Mr. Paul except that no objections were made. However, on May 10, Mrs. Carter, operator of the employment agency, advised him that Mr. Paul had called her and told her 'the whole deal was off'. Plaintiff says he called on Mr. Paul the following evening (May 11th); that Mr. Paul said he had changed his mind and expressed doubt that Morsinkhoff had left Crawford's employ.

The case as submitted authorized a finding for plaintiff if the jury found that on April 29, 1955, defendants promised plaintiff that if he discontinued his employment with Crawford, defendants would employ him; that the promise was of such a nature as would reasonably induce plaintiff to resign from Crawford; that plaintiff did so resign and offered to begin employment with defendants but defendants refused to employ him, and as a result, plaintiff was damaged, then plaintiff could recover any loss of earnings while temporarily unemployed, any bonus lost under his previous employment, plus any reasonable expense incurred in securing a new job.

It was plaintiff's testimony that he was out of work until July 5, 1955, when he secured employment with the H. D. Lee Company at a salary of $6,500 per year. Apparently the damages making up the verdict included one month's pay and part of a year's bonus lost from Crawford, plus an employment agency fee which plaintiff paid for securing the H. D. Lee connection.

We think that viewing the evidence most favorably for plaintiff and giving him all reasonable inferences, justifies a conclusion that defendants on April 29, 1955, orally agreed to employ plaintiff for (a) one year, commencing June 6, 1955, at a salary of $10,000 per year, or (b) for an indeterminate period, beginning June 6, 1955. However, plaintiff does not base his suit upon a one year contract but rather upon an oral hiring to commence June 6th and continue for an indefinite period. It was this latter theory that was submitted to the jury.

If the employment was for one year and to commence 37 days after the oral contract was made, no action would lie thereon by reason of the Missouri Statute of Frauds, Section 432.010, V.A.M.S. '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, * * *'. Hoover v. Citizens Home Bank, Mo.App., 245 S.W.2d 154, 155. 'Our statute of frauds * * * has been considered a rule of evidence affecting the remedy'. Campbell v. Sheraton Corp. of America, 363 Mo. 688, 253 S.W.2d 106, 109.

If the contract was oral and for an indefinite period, then it was terminable at will and may (absent some statutory requirement--nonexistent here) be ended by either party at any time, for any reason whatever, without incurring liability. The authorities so...