Peacock v. Virginia-Carolina Chemical Co.

• Decision Date: 23 October 1930
• Docket Number: 3 Div. 926.
• Citation: 130 So. 411,221 Ala. 680
• Parties: PEACOCK v. VIRGINIA-CAROLINA CHEMICAL CO.
• Court: Alabama Supreme Court

130 So. 411

221 Ala. 680

PEACOCK v. VIRGINIA-CAROLINA CHEMICAL CO.

3 Div. 926.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for breach of a contract of employment by A. J. Peacock against the Virginia-Carolina Chemical Company. Plaintiff takes a nonsuit and appeals from adverse ruling on pleading sustaining a demurrer to the complaint.

Affirmed.

Denson & Denson, of Opelika, and Ball & Ball, of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellee.

BOULDIN J.

The theory of the suit is that plaintiff was employed as traveling salesman for defendant for the full term of one year; that he was discharged without cause before the end of the year; and that plaintiff, being able, ready, and willing to continue the service, elects to sue for wages or salary due for the remainder of the year. Ex parte Towle, 213 Ala. 129, 106 So. 60.

Demurrer was sustained to the complaint. For this adverse ruling plaintiff took a nonsuit and appeals.

The written contract of employment was by letter tendering a position as traveling salesman which is set out in the complaint. The pertinent provision thereof reads: "Salary to be at the rate of $2000.00 per annum, payable monthly, beginning October 1, 1926."

Does this mean employment for at least one year at a named salary, or does it merely stipulate the rate of compensation for an indefinite term to continue at will, and terminable at the will of either party?

Under the early English decisions, dealing with relations of master and servant under conditions then prevailing, an indefinite employment was presumed to continue for a year.

This general presumption has been generally departed from in America, and the opposing presumption indulged, no custom or nature of employment to the contrary appearing, that an indefinite employment is a hiring at will.

"The presumption which, as already stated, is entertained by most of the American Courts, that an indefinite hiring is a hiring at will, is not repelled by the mere fact that the contract provides for the payment of compensation at a certain annual rate. The position taken is that such a provision simply embodies an agreement as to the rate of remuneration, and has no evidential bearing upon the duration of the engagement." 1 Labatt on Master & Servant (2d Ed.) Vol. 1, § 165.

"In the United States, a general or indefinite hiring is presumed to be a hiring at will. In the absence of custom or facts and circumstances showing a contrary intention on the part of the parties, it is generally held that the fact that a hiring is at so much per day, week, month, quarter of year, raises no presumption that the hiring was for such a period, but only at the rate fixed for whatever time the party may serve." 39 C.J. p. 44, § 18.

In a note in 11 A. L. R. 469, 476, the above statement of the rule is accredited to Wood on Master & Servant. See 2d Ed. § 136. The annotator declares the cases cited by Mr. Wood do not sustain the text, but proceeds to show they have been followed in many states.

Still further approval is shown in note 42 to the above text of Corpus Juris.

Beside Mr. Wood, Mr. Labatt, and Corpus Juris, the same rule is declared as the "drift of modern judicial thought," in the next of R. C. L. vol. 16, p. 509, § 20. See, also, notes 51 L. R. A. (N. S.) 629, Ann. Cas. 1913D, 219.

Turning to our own cases, the rule is fully recognized that an indefinite employment is terminable at the will of either party. Howard v. East Tenn., Va. & Ga. R. R. Co., 91 Ala. 268, 8 So. 868. But "when services are rendered under an offer to pay for them at so much per week or month, without specifying the duration of the employment, the employment is terminable by either party at the end of any unit period; and the beginning of each new unit period necessary postpones the right to terminate unit the end of that period." National Life Insurance Co. of U.S. v. Ferguson, 194 Ala. 658, 660, 69 So. 823, 824; Clark v. Ryan, 95 Ala. 406, 11 So. 22.

In Liddell v. Chidester, 84 Ala. 508, 4 So. 426, 427, 5 Am. St. Rep. 387, the offer was: "If one thousand dollars a year is an inducement, come immediately." The acceptance: "Will accept one thousand dollars a year." This court said: "These communications, unexplained, show a single contract for a year; the wages to be $1,000 in gross."

It is often said the presumption now so widely indulged in favor of indefinite employment grows out of employment conditions, social and economic in this country.

We must think of it in the light of the doctrine of entirely of contracts. If construed as a definite term, and the employee fails, without fault of the employer, to serve the entire term, the employee cannot recover even for the time he has served. Norris v. Moore, 3 Ala. 676.

In Moss v. Decatur Land Improvement & Furnace Company, 93 Ala. 269, 270, 9 So. 188, 189, 30 Am. St. Rep. 55, the following language is pertinent:

"'Plaintiff was employed and was to be paid by the month at sixty dollars per month.' This was not a hiring by the day, at the rate of $60 per month. In the case of Beach v. Mullin, it was held 'that a contract to pay sixteen dollars for a month's service

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