Pursell v. Wolverine-Pentronix, Inc.

• Court: Court of Appeal of Michigan
• Writing for the Court: HOLBROOK
• Citation: Pursell v. Wolverine-Pentronix, Inc., 283 N.W.2d 833, 91 Mich.App. 700 (Mich. App. 1979)
• Decision Date: 20 August 1979
• Docket Number: Docket No. 77-3720,WOLVERINE-PENTRONI,INC
• Parties: C. L. PURSELL, Plaintiff-Appellant, v., a corporation, Defendant-Appellee. 91 Mich.App. 700, 283 N.W.2d 833

Page 833

283 N.W.2d 833

C. L. PURSELL, Plaintiff-Appellant, v. WOLVERINE-PENTRONIX, INC., a corporation Defendant-Appellee.

Docket No. 77-3720.

91 Mich.App. 700, 283 N.W.2d 833

Court of Appeals of Michigan.

Aug. 20, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 701] Navarre & Navarre, P. C., by Joseph A. Navarre, Jackson, for plaintiff-appellant.

Levin, Levin, Garvett & Dill by Leonard J. Grabow, Southfield, for defendant-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

Plaintiff sued defendant for breach of an oral employment contract, the circuit court granted defendant's motion for directed verdict, and judgment in favor of defendant was entered.

This case was first before the Court in Pursell v. Wolverine-Pentronix, Inc., 44 Mich.App. 416, 205 N.W.2d 504 (1973). There the circuit court had granted defendant's motion for accelerated judgment based on the Statute of Frauds and this Court reversed and remanded for trial, stating in pertinent part as follows:

"The facts appearing in the plaintiff's complaint are [91 MICHAPP 702] largely uncontested. In 1966, the plaintiff was 59 years old and employed by Dow Chemical as general manager of its plant in Jackson, Michigan. This plant was acquired by the defendant from Dow Chemical on September 1, 1966. The defendant offered to keep the plaintiff on as general manager, orally promising to employ him as vice-president until he reached retirement at age 65. In reliance on these promises, the plaintiff severed his employment with Dow Chemical and accepted the position offered by the defendant. In June of 1970, the defendant terminated plaintiff's employment thereby breaching the oral promise.

"The plaintiff's first contention in this Court is that the trial court erred in dismissing his claim for damages resulting from the breach of the oral contract of employment.

"At the outset, it must be stated that a contract not to be performed within one year from its making must be in writing to be enforceable, MCLA § 566.132(1); MSA § 26.922(1), and that this rule applies to oral contracts of employment. Adolph v. Cookware Co. of America, 283 Mich. 561, 278 N.W. 687 (1938); Lynas v. Maxwell Farms, 279 Mich. 684, 273 N.W. 315 (1937).

"The plaintiff concedes that the oral contract is covered by the above-cited rule but argues that the defendants are estopped from raising this defense.

"The doctrine of equitable estoppel, upon which the plaintiff relies, is set forth in 3 Williston, Contracts (3d ed.), § 533A, p. 796:

" 'Where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the Statute of Frauds.'

"In the instant case, plaintiff argues that the Giving up of his prior employment and the substantial retirement benefits that accompanied it constituted sufficient reliance within the meaning of the doctrine. The defendants counter this argument with the proposition that the giving up of other employment is not sufficient to invoke the doctrine of estoppel. In support of this proposition the defendant cites Adolph v. Cookware Co. of America, 283 Mich. 561, 278 N.W. 687 (1938); Gudenau[91 MICHAPP 703] v. Farm Crest Bakeries, 268 Mich. 399, 256 N.W. 462 (1934), and McLaughlin v. Ford Motor Co., 269 F.2d 120 (CA 6, 1959). The holdings of these cases are adequately stated in McLaughlin, supra, 124, 125, in the following language:

" 'The exception recognized by that case and in some other jurisdictions is that the oral agreement is not affected by the Statute of Frauds if it is supported by a consideration separate and apart from its performance, such as where the plaintiff has given up something to the defendant for which it would not be compensated unless the agreement was enforced. * * * The action of the appellant in giving up his position with the General Motors Corp. was only a necessary incident in placing himself in a position so that he might perform his agreement with the Ford Motor Company. This conferred no benefit upon the Ford Motor Company and was not a separate consideration passing from the appellant to the Ford Motor Company within the meaning of the rule. Lynas v. Maxwell Farms, 279 Mich. 684, 689, 273 N.W. 315 (1937); Adolph v. Cookware of America, 283 Mich. 561, 568, 278 N.W. 687 (1938).'

"Thus, these cases did not deal with the problem of estoppel and are not controlling.

"A careful review of the law in this state reveals that the only case dealing with the doctrine of estoppel as applied to a factual situation similar to the instant case is Oxley v. Ralston Purina Co., 349 F.2d 328 (CA 6, 1965). In Oxley, supra, the plaintiff underwent considerable expenditures to begin to operate a 'hog leasing' program as a result of an oral agreement with the defendant. The Court upheld the trial judge's finding that the defendant was estopped from asserting the Statute of Frauds.

"Granted, there may be a difference between the spending of a large amount of money in reliance on an oral contract and one's giving up of his employment. However, the doctrine of equitable estoppel applies in those cases where its application is called for by the facts. Oxley, supra.

"In the instant case, the facts adduced at trial may show that in this particular case, there was sufficient [91 MICHAPP 704] reliance to estop the defendant from raising the Statute of Frauds as a defense. Therefore, the granting of the motion for accelerated judgment was improper." (Emphasis added.)

Trial of the case commenced on July 18, 1977. At the conclusion of plaintiff's proofs, the motion of the defendant for a directed verdict was granted on the grounds that plaintiff, as a matter of law, had failed to establish that he gave up prior employment and substantial retirement benefits with Dow and that, therefore, no estoppel was present and defendant was entitled to assert the Statute of Frauds as a defense.

The rule as to motions for directed verdicts is clearly stated in the case of Light v. Schmidt, 84 Mich.App. 51, 59, 269 N.W.2d 304 (1978), as follows:

"When a defendant is seeking a directed verdict, the motion may be offered at the close of plaintiff's evidence. GCR 1963, 515.1. On appeal from a trial court order granting defendant's motion for a directed verdict, this Court will view the evidence presented in the light most favorable to the plaintiff. Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976), Lv. den., 399 Mich. 851 (1977), Hensley v. Colonial Dodge, Inc., 69 Mich.App. 597, 245 N.W.2d 142 (1976). The proper test for determining whether the motion should be granted is whether or not evidence was offered upon which reasonable minds could differ. Armstrong v. LeBlanc, 395 Mich. 526, 236 N.W.2d 419 (1975)."

In this case we must determine if there was sufficient evidence presented by plaintiff to raise a question of fact as to whether plaintiff acted to his detriment solely in reliance on the oral agreement with the defendant.

The plaintiff, Mr. Pursell, testified that he was manager of the Jackson plant, that he had been [91 MICHAPP 705] an employee of Dow for more than five years at the time of negotiations by defendant with Dow for the purchase of the Jackson plant, and that he was never terminated by Dow. It was his desire to continue to work for Dow. He had a good record with Dow and inquired of Mr. Ansell, his boss, about a transfer to the Madison plant near St. Louis, Missouri, and also made inquiry of Personnel at the home office at Midland about transfer to another Dow position if and when the Jackson plant was disposed of by Dow. The person at Personnel replied: no problem, let us know 90 days ahead of that time. Mr. Ansell, plaintiff's boss, said plaintiff was a capable person and he would like to have Pursell with him and would recommend to Dow that he come with him to the Madison plant. Mr. Herbert Lyon, on the board at Dow, testified that to his knowledge there was no one at Dow that objected to Mr. Pursell continuing to work for Dow. He also stated that Dow had an Executive Pool that Mr. Pursell was qualified to be assigned to, should his position at the Jackson Plant be discontinued. Mr. Lyon also testified:

"Q. (By Mr. Cobb ) Mr. Lyon, you were asked in your January 1975 deposition did you make an effort to place people in the organization who were displaced by reason of this sale to other organization?

"MR. GRABOW: Would you repeat.

"Q. Did you make an effort to place people in the organization? The answer was,

" 'We certainly did. The Dow Chemical Company does not sell off a facility and jerk it right out from under the employees and cast them loose. That is what I don't like about the word termination.'

"Q. That's what I was trying to get at, company policy. The answer was,

" 'I felt that we make every effort to place the employees in a situation of that sort.' "

[91 MICHAPP 706] It was established that plaintiff's five years' service would qualify him for the regular Dow retirement plan should he be placed in the Dow organization that had the plan, that under the plan and with his five years of credit with Dow, he would have 11 years of credit at age 65 and be entitled to substantial benefits.

Mr. Pursell, the plaintiff, testified concerning the conversation he had with defendant corporation's officers: Mr. Donald Smith, Chairman of the Board, the executive vice-president, Mr. Clark, and an accountant and another person connected with the defendant. This testimony is as follows:

"Q. (Mr. Cobb, plaintiff's attorney ) Did something come up concerning sale of the Plant and your continuing employment with Dow?

"A. Yes, Mr. Smith asked me what I needed to run the Plant as the Manager of the Plant and I said, 'It isn't my intent to work for you.' He said, 'Well I can't use this Plant unless you do' and then we got into a discussion of what he could offer.

"Q. Did the question of your age come up?

"A. Yes, I...