Savarese v. Pyrene Mfg. Co.

• Decision Date: 09 June 1952
• Docket Number: No. A--132,A--132
• Citation: 89 A.2d 237,9 N.J. 595
• Parties: SAVARESE v. PYRENE MFG. CO.
• Court: New Jersey Supreme Court

Page 595

9 N.J. 595

89 A.2d 237

SAVARESE v. PYRENE MFG. CO.

No. A--132.

Supreme Court of New Jersey.

Argued May 19, 1952.

Decided June 9, 1952.

Bernard Shurkin, Newark, argued the cause for appellant (Sanderson & Engel, Newark, attorneys).

Frank C. O'Brien, Newark, argued the cause for respondent (Pitney, Hardin & Ward, Newark, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

This is an action for damages by reason of the breach of an alleged contract for life employment.

The plaintiff entered the employ of the defendant company in 1917. During the year 1925 the company fielded a baseball team in the Industrial Twilight League. The plaintiff at the time was a labor foreman in charge of one of the defendant's receiving departments and was engaged as a player on the company team. The team was maintained for advertising purposes and the company purchase the equipment and uniforms and paid the necessary expenses.

In 1929 a Mr. Weed, secretary and second vice-president of the company in charge of sales and advertising, called the plaintiff to his office and asked him to become manager of the baseball team. The plaintiff assented. Before the playing season opened in that year, Weed again spoke to the plaintiff complaining of the lack of experienced players and asked him actively to participate in the games as a catcher. The latter demurred on the ground he was getting too old and didn't 'feel as if I could get out there physically.' He stated he had just come out of the hospital and asked what would happen to him if he should get hurt. Weed reportedly answered: 'If you get hurt I will take care of you. You will have a foreman's job the rest of your life.' The plaintiff alleges Weed specified the job as 'the one I had, the one I earned.'

This agreement was never reduced to writing and, Mr. Weed having since died, the proof of it rests on the testimony of the plaintiff.

During the 1929 baseball season, while playing in one of the games, the plaintiff sustained leg injuries resulting in osteomyelitis. Several operations ensued but an arthritic condition developed which finally necessitated the amputation of the knee cap. By 1939 the knee joint had fused to the extent the plaintiff has since been unable to bend or flex it.

While the plaintiff was confined to his home following the injury, Weed visited him and in the presence of his wife stated: 'I told you not to worry. You will have your foreman's job there as long as you live.'

Despite his injury, the plaintiff continued in the employ of the defendant for 21 years until April 1, 1950, when he was notified by letter the employment was terminated. The letter, enclosing a check for $3,000 less federal income tax withheld, stated this amount represented 'a payment being made to you in connection with the termination of your employment on March 31, 1950 by this Company. This payment is made to you not only in recognition of your many years of faithful service to the Company, but also because the Company desires to have available to it in the future the benefit of your experience and of your knowledge of its affairs which you have acquired from your long association with it. You may be sure that, although we may seek your advice from time to time, we shall not make unreasonable requests.' The plaintiff accepted and cashed the check.

This action was brought demanding reinstatement of the plaintiff to his former position and monetary damages. By a subsequent order entered with the consent of all parties, the demand for reinstatement was dropped and the complaint restricted to a suit for money damages.

The plaintiff demanded a jury trial and the defendant countered with a motion for summary judgment under Rule 3:56 on the ground there was no genuine issue as to any material fact. The trial court granted the defendant's motion, holding that even if the contract and Weed's authority to bind the corporation to it were admitted, nevertheless the damages were uncertain and unliquidated and the acceptance of the sum of $3,000 was, under these circumstances, tantamount to and operated as an accord and satisfaction, precluding the maintenance of the action. The plaintiff's appeal to the Appellate Division was certified here on our own motion prior to argument.

The plaintiff insists summary judgment was improperly entered because a jury question was presented as to the existence of the contract and the defendant's liability.

It is axiomatic that on a motion for summary judgment the evidence and the inferences which may properly be drawn from it will be construed in the light most favorable to the party against whom the motion is made. Daniels v. Brunton, 7 N.J. 102, 80 A.2d 547 (1951); Dubonowski v. Howard Savings Institution, 124 N.J.L. 368, 12 A.2d 384 (E. & A.1940). To be enforceable, however, a contract must be sufficiently definite in its terms that the performances to be rendered by each party can be reasonably ascertained. Montclair Distributing Co. v. Arnold Bakers, Inc., 1 N.J.Super. 568, 62 A.2d 491 (Ch.Div.1948).

'An offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.' Restatement, Contracts (1932), sec. 32.

Here no salary was agreed upon nor was provision made as to what would occur if the plaintiff became wholly or partially unable to perform his duties or fulfill the terms of his contract. It was not stipulated whether the current salary was to be increased or decreased, depending upon the circumstances and business conditions encountered, making it comparable to that of other employees. No mention was made of the effect disability would have or whether it would vary depending upon its being connected with or disassociated from baseball activities. Many other possible future contingencies were not covered by or provided for in the agreement made.

In Shaw v. Woodbury Glass Works, 52 N.J.L. 7, 18 A. 696 (Sup.Ct.1889), affirmed per curiam 53 N.J.L. 666, 24 A. 1004 (E. & A.1891), suit was brought on an agreement to employ plaintiff to work in the defendant's factory for a set period and 'to pay the plaintiff such wages as he might earn in said employment.' Finding in favor of the defendant, the court said:

'It seems impossible to construe this transaction, as understood by the plaintiff, into a contract of hiring. The essential terms were not settled by the parties to it. The rate of wages was not fixed, nor was the place in the works to be given to the plaintiff agreed upon. * * *'

A contract similar to the one alleged here was the subject of litigation in Bird v. J. L. Prescott Co., 89 N.J.L. 591, 99 A. 380, 381 (E. & A.1916). The plaintiff had been injured while in the employ of the company and threatened suit. To induce him to forbear, he was offered a life job. The plaintiff was not satisfied with the verbal assurance and demanded 'a paper, a contract.' He was given a document assuring him of steady and permanent work when he was able to return to it. The court, ruling for the defendant, noted:

'Nothing was said either in the conversation or the written document as to the wages to be paid or any other term of the employment. In this respect the case is subject to the same difficulty that Chief Justice Beasley referred to in Shaw v. Woodbury Glass Works, 52 N.J.L. 7, 18 A. 696. The paper as well as the conversation on which the plaintiff relies, amount to no more than a friendly assurance of employment and are not sufficiently definite to make an enforceable contract.'

The adjudications dealing with life contracts have been collected and discussed in 135 A.L.R. 654; 35 Am.Jur. 460, sec. 24, referred to in the recent case of Eilen v. Tappin's Inc., 16 N.J.Super. 53, 83 A.2d 817, 818 (Law Div.1951), and the generally prevailing rule is set forth as follows:

'* * * in the absence of additional express or implied stipulations as to duration, a contract for permanent employment, for life employment or for other terms purporting permanent employment, where the employee furnishes no consideration additional to the services incident to the employment, amounts to an indefinite general hiring terminable at the will of either party, and therefore, a discharge without cause does not constitute a breach of such contract justifying recovery of money damages therefor.'

And:

'* * * Where the employee has given consideration additional to the...