Mumford v. Hutton & Bourbonnais Co., 8025SC180

• Decision Date: 01 July 1980
• Docket Number: No. 8025SC180,8025SC180
• Court: North Carolina Court of Appeals
• Parties: , 115 L.R.R.M. (BNA) 4987 Alex MUMFORD v. HUTTON & BOURBONNAIS COMPANY.

Page 511

267 S.E.2d 511

47 N.C.App. 440, 115 L.R.R.M. (BNA) 4987

Alex MUMFORD v. HUTTON & BOURBONNAIS COMPANY.

No. 8025SC180.

Court of Appeals of North Carolina.

July 1, 1980.

Rudisill & Brackett by J. Richardson Rudisill Jr., Hickory, for plaintiff-appellant.

Patrick, Harper & Dixon by James T. Patrick, Hickory, for defendant-appellee.

HILL, Judge.

Plaintiff contends the trial judge erred in dismissing with prejudice his cause of action, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Plaintiff urges that under the theory of notice pleading he has given sufficient notice of events or transactions which give rise to the claim to enable the adverse party to understand the nature and basis for it, to file a responsive pleading and by using the rules provided for obtaining pretrial discovery to get any additional information he may need to prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Nevertheless, a complaint must be dismissed when, on its face, it reveals that no law supports it, that an essential fact is missing, or a fact is disclosed which necessarily defeats it. Mozingo v. Bank, 31 N.C.App. 157, 162, 229 S.E.2d 57 (1976), disc. rev. denied 291 N.C. 711, 232 S.E.2d 204 (1977).

Paragraph III of the plaintiff's complaint is as follows:

That on the 23rd day of November, 1976, for good and valuable consideration, the Plaintiff and the Defendant entered into a written contract providing for the employment of the Plaintiff, a copy of which is attached hereto, marked Exhibit 'A' and incorporated herein by reference as if fully set forth herein; that the Plaintiff accepted the employment as outlined by said contract and went to work for the Defendant, pursuant to the terms and provisions of said contract; that the intent of the contract as hereinbefore described was to be a three-year working contract, with both parties having options to review the same at sixty and ninety days; that the Plaintiff has faithfully fulfilled all of his obligations under said contract and was continued by the Defendant after the sixty-day and ninety-day review.

The pertinent parts of Exhibit "A" referred to above are as follows:

4) Hutton & Bourbonnais will start your salary at $12,000.00 per year. If both you and the company are satisfied, this will be raised at the end of a 60 day period to $15,000.00 per year. Again, if both you and the company are satisfied, this will be raised to $18,000.00 a year at the end of 90 days.

5) In addition to the above salary, Hutton & Bourbonnais will advance.$1000.00 per month debit to your over ride account which you may draw against up to the full.$1000.00. The company will credit this account as follows:

For the first year of your employment, you will receive an over ride of 1% on all new accounts (i. e. 76-77 accounts) which have been brought into the company regardless of who is responsible for the account. In the second and third years of your employment you will receive 1/2 of 1% of these accounts, (i. e. 76-77 account). At the end of the third year, these become house accounts. In the second year of your employment, the same will apply with the new accounts for the 77-78 accounts at the same 1/2 of 1%; starting point is $4,000,000.00 sales. The company will furnish you a list of present accounts and you will have for your use a computer readout on a weekly basis.

The company agrees to review this agreement with you at the end of six months. At the end of one year's time and each six months thereafter the draw account will be reconcilled (sic).

The complaint and the exhibit do not indicate a definite term of employment. The time specified in the agreement is nothing more than a formula for crediting the override account. Such a provision as a matter of law does not establish a definite term of employment. Freeman v. Hardee's Food Systems, 3 N.C.App. 435, 165 S.E.2d 39 (1968). When the duration of employment is not definitely specified, the contract is for an indefinite period, terminable at the will of either party. Freeman, supra.

Plaintiff contends, however, that the pleadings and exhibit do not include the entire contract between the parties and that part of the contract was oral. Plaintiff further points out that his complaint sets forth ". . . that the intent of the contract, as hereinbefore described, was to be a three-year working contract, with both parties having options to review the same at sixty and ninety days." The complaint does not refer to an oral contract, only a written contract, and the reference to the "intent of the contract" refers only to plaintiff's conclusions as to the effect of its provisions.

At the hearing on the motion, the trial judge asked counsel for the defendant whether there was further evidence in regard to time duration other than the written agreement, or whether plaintiff desired to amend his complaint. Plaintiff's counsel advised the court that he desired to make no amendment and had no further evidence in regard to time duration. Plaintiff now contends that he did have other evidence to complement the written agreement but was not prepared to offer it at the time. However, in his motion for a new trial, plaintiff states: "It is true that at this hearing Plaintiff had available no other evidence as to the time duration of the contract, but this is not to say that upon adequate discovery and live testimony at a trial of this matter, such other evidence could not be presented . . ....