Russell & Axon v. Handshoe, G-6

• Decision Date: 01 July 1965
• Docket Number: No. G-6,G-6
• Citation: 176 So.2d 909
• Parties: RUSSELL & AXON, Consultant Engineers, a corporation, Appellant, v. Joseph C. HANDSHOE, Appellee.
• Court: Florida District Court of Appeals

Page 909

176 So.2d 909

RUSSELL & AXON, Consultant Engineers, a corporation, Appellant, v. Joseph C. HANDSHOE, Appellee.

No. G-6.

District Court of Appeal of Florida, First District.

July 1, 1965.

Rehearing Denied July 19, 1965.

Melvin Orfinger and Charles Tindell, Daytona Beach, for appellant.

Norton Josephson, Daytona Beach, for appellee.

WIGGINTON, Judge.

Appellant, who was defendant in the trial court, has appealed a final judgment entered upon a jury verdict awarding damages to appellee in the sum of $4,800.00. It is appellant's contention that there is no competent substantial evidence in the record to support the jury's verdict, and the trial court erred in denying its motion for directed verdict made at the close of plaintiff's evidence, and again at the close of all evidence in the case.

Plaintiff sued defendant, claiming damages ages arising from the breach of a contract of employment. He alleged that although under the contract he was employed for a period of at least one year, he was wrongfully discharged after rendering only four months service. Appellant defended the action on the contentions that appellee's oral contract of employment was for no specified term and was therefore terminable at the will of appellant; that the document attached to the complaint and relied upon by appellee as constituting a written contract of employment contains no provision respecting the term of employment, and if a contract at all, the employment contracted thereby was terminable at the will of appellant; that if the written document relied on by appellee is held to be a contract of employment, then it is void and ineffective for any purpose because (a) it lacked consideration, and (b) it was induced by false and fraudulent representations of material facts made by appellee for the purpose of securing employment, which facts, if truthfully stated, would have precluded appellee's employment. Lastly, appellant contends that regardless of whether appellee's employment was for a period of one year or more, or was terminable at will, it was terminated because of unsatisfactory work which relieved appellant from any further obligation to continue appellee in its employment.

The evidence establish without conflict that appellee sought employment with appellant and stated that because of desperate financial circumstances and the illness of his wife, he would accept a position on almost any terms offered and for whatever salary appellant felt it could pay for his services as an engineer. After filling out a written application for employment, and based only upon an oral understanding, appellee was employed and commenced work on October 1, 1962, at an agreed salary of $600.00 per month. No discussions ever took place between appellant and appellee with respect to the term of his employment, or how long his services would be retained. In his application for employment appellee grossly misstated his age to be fifty-five years, whereas, in fact he was actually seventy years old. He stated that he was American born although he was born in a foreign country and was later naturalized as a citizen of the United States. He represented that he had graduated from two institutions of higher learning on dates much later than his actual granduation in order to conform to the false age represented by him. Appellee candidly admitted that he falsified his age in the employment application because he felt that had he stated his true age, he would have been denied employment.

Approximately ten days after appellee started work, appellant issued and delivered to appellee a document entitled 'Agreed Conditions of Employment,' this being the document which appellee contends constituted a written contract of employment. The document specified the salary to be paid appellee to be the sum of $600.00 per month--$7,200.00 per year. The document designated six specified days of the year as holidays for which appellee would be paid, and recited that time of vacation would be by mutual agreement. The document also contained the following provision, to wit:

'This agreement temporary for period of 30 days; if work is satisfactory, agreement to become permanent thereafter. At least one technical article a year must be written.'

As stated above, the foregoing document was gratuitously furnished appellee by appellant in the absence of any request therefor. After working for a period of about four months, appellee was notified that his services with appellant were terminated. He then instituted this action claiming that under his written contract of employment, he became a permanent employee after having worked for appellant for a period of thirty days, and as such permanent employee he was entitled to all the privileges of employment at a salary of $7,200.00 a year for as many years in the future as he would reasonably be capable of rendering professional engineering services, which he estimated to be for a period of seven years.

On the foregoing facts the court submitted to the jury the question of whether a contract of employment, either oral or written, existed between the parties, and if so, the duration of appellee's employment under such contract. After retiring to consider its verdict, the jury submitted a question to the court as follows:

'We are not agreed on what is a contract and if an agreement signed by two parties becomes a contract under law.

'And, if the agreed conditions of employment becomes a binding instrument.'

The jury was told that the questions asked were matters which they were required to decide upon the prior instructions of the court, and it was directed to return to its room and reconsider the matter. In due course the jury reported its verdict in favor of the plaintiff in the amount above indicated.

For the purpose of this decision we will assume, without deciding, that the document entitled 'Agreed Conditions of Employment' constituted a written contract of employment between the parties and was supported by a valuable consideration, all as contended by appellee. If appellee's employment was for a fixed or specified term, and not terminable at the will of appellant, then the agreement evidencing such intent must be found within the four corners of the written contract. The trial court considered the recitals in the foregoing document to be sufficiently ambiguous as to create a question of the intent of the parties with respect to the duration of appellee's employment, and for that reason considered the resolution of this question to be a jury issue rather than one of law to be decided by the court. This is the position taken by appellee in the trial court, and likewise taken on this appeal.

By its award of $4,800.00, it is evident that the jury found the term of appellee's employment to be for a term of only one year, the sum awarded representing the remaining eight months of the year following termination of appellee's employment. In doing so the jury not only rejected appellant's contention that the employment was terminable at the will of the employer, but likewise rejected appellee's contention that as a permanent employee he was entitled to remain in the employ of appellant and be paid his agreed salary for so long as he was capable of rendering engineering services called for in his employment contract. It is our view that the recitals contained in the document on which appellee relies as constituting a contract of employment are not ambiguous but establish as a matter of law that appellee's employment was of no specified duration and was terminable at the will of either party, with or without cause.

The basic problem presented by this case involves construction of the employment contract entered into between the parties. Usually, the duty of construing a contract is that of the court and not the jury. ¹ In this case it was stipulated that the question of whether a contract of employment was entered into between the parties was one of the issues to be tried to the jury. This agreement was incorporated in the pretrial order entered by the court. However, after the evidence was fully submitted, it was for the court to rule whether the period of employment was for a fixed term, or was for an indefinite term which could be terminated at will by either party.

The employment contract here considered specifies that the agreed salary to be paid appellee was the sum of $600.00 per month--$7,200.00 per year.' The decisions rendered by the courts of this country are in conflict as to whether the specified rate of pay stipulated in an employment contract controls the duration of employment in the absence of any custom or specific provision in the contract. The majority of states have held that unless the employment contract specifically provides for a definite term of employment, or the term is established by custom, the employment is considered to be indefinite and terminable at the will of either party. This is so irrespective of whether the rate of pay is stated on an annual, quarterly, monthly, or weekly basis. These courts hold to the proposition that it is the pay period which controls the time at which the employee's services may be lawfully terminated. If the employee is paid by the month, then his services are terminable at the end of any month at the will of either party. ²

Typical of the cases which follow the majority rule stated above is that of Peacock v. Virginia-Carolina Chemical Co. ³ decided by the Supreme Court of Alabama. In this case plaintiff was employed by defendant under a written contract of employment which provided that his salary would be at the rate of $2,000.00 per annum, payable monthly. Plaintiff contended that although he was employed for a period of one year, his services were terminated prior to the end of the year thereby entitling him to damages. Defendant contended that since no definite time of employment was contained in the contract, it was an employment at will,...