Rape v. Mobile & O. R. R. Co.

• Citation: 100 So. 585,136 Miss. 38
• Decision Date: 16 June 1924
• Docket Number: 23592
• Parties: RAPE v. MOBILE & O. R. R. CO. [*]
• Court: United States State Supreme Court of Mississippi

100 So. 585

136 Miss. 38

RAPE v. MOBILE & O. R. R. CO. ^[*]

No. 23592

Supreme Court of Mississippi

June 16, 1924

(En Banc.)

CONTRACTS. Master and, servant. Contract for permanent employment held terminable at pleasure of either party.

A contract for permanent employment so long as the work is satisfactorily performed, which is not supported by any consideration other than the obligation of service to be performed on the one hand and wages to be paid on the other is terminable at the pleasure of either party.

ETHRIDGE J., dissenting.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by Charles C. Rape against the Mobile & Ohio Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

McFarland & Holmes, for appellant.

The courts have uniformly held that a contract of this character is not within the statute of frauds, since it may be fully performed within a year. Jackson v. Illinois Central Railroad Company, 76 Miss. 607; Edwards & Son v Favre, 110 Miss. 864, at 870; Haynes v. Atlanta & Charlotte R. Co., 143 N.C. 55, 125 S.E. 447; Elliott "Contracts," section 1285; Ingram-Day Lumber Company v. Rodgers, 105 Miss. 244; Carnig v. Carr, 35 L. R. A. 512, and notes; Sullivan v. Detroit Electric Railway Co., 64 L. R. A. 673, and cases cited at the end of opinion.

"Permanent" employment, under some circumstances, has been held to contemplate a continuous engagement, to endure as long as the employer shall be engaged in business and have work for the employee to do, and the latter shall perform the services satisfactorily. 18 R. C. L. 510, 64 L. R. A. 678, 35 L. R. A. 516. "Employee must be ready, able and willing to perform such service as the employer may demand of him." 35 L. R. A. 513, and note. "No distinction between 'steady' and 'permanent' work and contract for life." 35 L. R. A. 517, and note bottom second column.

The only question involved in this case, is: "Was there mutuality in the contract? Or, to express it another way, "Was there any consideration on the part of appellant for the agreement by appellee to give him permanent employment? Did appellant pay anything, or give up anything, or suffer anything for his option to work for appellee as long as he chose? Did any profit or benefit accrue to appellee by reason of this contract?

What is meant by mutuality in a contract? The correct meaning is very clearly and lucidly announced in 6 R. C. L. 686, section 93. For a number of acts and things that have been held to be sufficient considerations by the courts, see 1 Elliott on Contracts, section 207; 13 C. J. 324, sections 162-3; 13 C. J. "Contracts," sections 150 to 170, inclusive; 6 R. C. L. "Contracts," sections 66 to 74 inclusive; 1 Elliott on Contracts, ch. 9.

In Fontaine v. Boxley, 90 Ga. 416, 17 S.E. 1015, it was held that when one of the parties to a contract whereby he was to go to New York and open up an office for the sale of an article to be supplied him by the other party, at a stipulated price, in such quantities as he might need to fill his contracts during the ensuing year, in pursuance of the agreement, went to New York and opened up the contemplated business, and thereby incurred expenses, this was a sufficient consideration to make the contract mutual and binding on both parties. To the same effect see Emerson et al. v. Pacific Coast & Norway Packing Company, 1 L. R. A. (N. S.) 445 and notes. See Cox v. Baltimore & Ohio Railroad Company, 50 L. R. A. (N. S.) 453, and notes.

There is a consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has the legal right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not. Brown v. Taylor, L. R. A. 1918B, 293; Newhall v. Journal Printing Co., 20 L. R. A. (N. S.) 899, and notes; Carnig v. Carr, 35 L. R. A. 512, and notes; School District of Kansas City v. Stocking, 37 L. R. A. 406. See dissenting opinion in case of St. L., I. M. & S. R. Co. v. Matthews, 39 L. R. A. 467; Note to Schoenman v. Whitt, 19 L. R. A. (N. S.) 598; Magee v. Catchings, 33 Miss. 672; Cox v. Baltimore & Ohio Railroad Co., 50 L. R. A. (N. S.) 453.

The nearest case in point that we have been able to find is Marr v. Burlington, Cedar Rapids & Northern R. Co., 96 N.W. 716, mentioned in 13 C. J. 317, note 92. See, also, L. & N. Railroad Company v. Offutt, 15 Ky. 301.

By reason of this contract the railroad company was enabled to carry out its business as a public carrier and so comply with its duties to the public. This was a sufficient consideration, as appellant would not have entered into the contract unless it was to be permanent. Appellant gave up his work on the farm; suffered humiliation and abuse and possibly bodily harm at the hands of the strikers; incurred expense in moving his family to Okolona, and by his work under his contract aided the defendant in continuing its business; while appellee was enabled to break the strike and received the profits from its business as a public carrier. In our opinion, this was a sufficient consideration and gave the contract mutuality and the case should be reversed.

R. C. Beckett and J. M. Boone, for appellee.

I. The reasonable interpretation of the intention of the parties as shown by the language of the witnesses and the circumstances is that the plaintiff would have a regular job with the railroad company such as was held by the strikers before they went on strike, with the usual rights of seniority, and this was merely an expression of intention on the part of the railroad company and not a promise made as part of a contract. R. R. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902.

II. The offer by a railroad company of a "permanent job" does not mean a job for life (except under certain special circumstances, such as personal injury settlements), but merely that the job was not known at the time to be a temporary one or for any definite period. L. & N. R. R. Co. v. Offutt, 99 Ky. 427; 18 Ky. L. R. 303, 59 A. S. R. 36, S.W. 181; McKelvy v. Choctaw Cotton Oil Co., 152 P. 414; Lord v. Goldberg, 81 Cal. 596, 15 A. S. R. 82; Shuler v. Corl, 178 P. 535; Speeder Cycle Co. v. Teeters, 18 Ind.App. 474, 48 N.E. 592; Bentley v. Smith, 3 Ga.App. 242, 59 S.E. 720; 18 R. C. L. 494, sec. 4; 18 R. C. L. 510, 511, sections 20 and 21.

III. A promise of a "permanent job," if construed to mean a job for life, where the worker does not make any promise as to the permanency of his work, is an option on the job and is unenforceable in law unless supported by an independent consideration. 18 R. C. L. 510, sec. 20.

IV. A unilateral contract is unenforceable in Mississippi. Kolb v. Bennett Land Co., 74 Miss. 567.

Wells, Stevens & Jones, for appellant in reply.

The only point presented by this appeal is whether the plaintiff had an enforceable contract.

Granting for the sake of argument, that the plaintiff might have quit the job at will, nevertheless the contract of the railroad company was binding so long as the employee was ready, willing and able to perform the work contracted to be performed, and especially so long as the Mobile and Ohio Railroad Company was operating as a common carrier and in need of the services which the plaintiff was engaged to perform. We shall cite authorities expressly so holding. It is evident therefore that this case narrows down to the one single question as to whether the contract is unenforceable for want of an adequate consideration.

It is our contention that the contract is supported by valuable consideration for two reasons: First, the only consideration required as flowing from the employee is his services, and the consideration is services on the one hand, and monetary wages on the other. Secondly, in addition to the consideration which is presented in any ordinary contract of employment the record shows that the employee went to additional expense and incurred extraordinary risk on the one hand, and the railroad got relief at a time when a general strike was about to paralyze its operation, and at a time when its property was being endangered and its investments liable to become idle. So it is that there was not only a detriment and inconvenience and expense suffered on the part of the plaintiff, but an extraordinary advantage derived by the railroad company as a result of the contract of employment, and this, in itself, is sufficient to show the consideration, if indeed it be necessary to prove an additional consideration to that above referred to.

The court in substance ruled that this was a mere unilateral contract. For a discussion of unilateral contracts, see 1 Williston on Contracts, par. 13.

Again, it is not always necessary that there shall be mutuality in a contract in order that there may be a binding obligation on both parties. Williston, par. 140.

The contract here relied on is supported by a valuable consideration and is sufficiently definite to be enforceable. The leading American case on this subject is Carnig v. Carr, 35 L. R. A. 512, 57 A. S. R. 488. See Carter White Lead Company v. Kimlin, 47 Neb. 409; Gulf, Colorado, & Sante Fe Railroad Company v. Jackson, 29 Tex.Civ.App. 342; Newhall v. Journal Printing Company, 105 Minn. 44, 117 N.W. 228, 20 L. R. A. (N. S.) 899, 18 R. C. L. 494; Raphael v. Hartman, 87 Ill.App. 634; Butterick Publishing Company v. Whitcomb, 225 Ind. 605, 80 N.E. 247, 8 L. R. A. (N. S.) 1004; Pennsylvania Company v. Dolan (Ind.), 51 A. S. R. 289; Smith v. St. Paul and D. R. R. Co., 60 Minn. 330, 62 N.W. 392; Hobbs v. Electric Light Co., 75 Mich. 550; Labatt on Master & Servant (2 Ed.), par. 92, page 335.

There is nothing in the...