Saylor v. Marshall & Ilsley Bank

• Decision Date: 06 April 1937
• Citation: 272 N.W. 369,224 Wis. 511
• Court: Wisconsin Supreme Court
• Parties: SAYLOR v. MARSHALL & ILSLEY BANK.

224 Wis. 511

272 N.W. 369

SAYLOR

v.MARSHALL & ILSLEY BANK.

Supreme Court of Wisconsin.

April 6, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Kleczka, Judge.

Reversed.

This action was begun in the civil court for Milwaukee county on August 3, 1934, by R. S. Saylor, plaintiff, against Marshall & Ilsley Bank, defendant, to recover a balance claimed to be due on contract. There was a trial in the civil court for Milwaukee county. The court found in favor of the plaintiff. Judgment was entered accordingly from which the defendant appealed to the circuit court for Milwaukee county. Upon the hearing in the circuit court for Milwaukee county, the court affirmed the judgment of the civil court and from the judgment of affirmance entered September 18, 1936, the defendant appeals.

Prior to the 15th day of October, 1930, plaintiff was a bond salesman in the employ of the Continental Illinois Company, at Chicago. He had worked for that company for about eight years and prior thereto had been in the employ of the Goodyear Tire & Rubber Company for six years. He did not like working in the city of Chicago and was interested in making a change. Through a representative of the Continental Illinois Bank & Trust Company, the defendant at that time looking for a bond salesman, learned that Mr. Saylor was dissatisfied and might be interested. Thereupon the defendant called the Continental Illinois Company and was advised that they had no objection to the defendant approaching Mr. Saylor. Whether the first meeting occurred in Chicago or Milwaukee is uncertain. The parties agree that the plaintiff came to Milwaukee in September, and there the matter was discussed at considerable length, but it is not claimed that any term of employment was agreed upon. There was a talk between the plaintiff and Mr. Daggett, the representative of the defendant, with respect to the permanency of the employment. The bank was willing to pay $3,600 a year, and the plaintiff asked $4,800 a year for his services. There was a good deal of negotiation between the parties relating mainly to the compensation. In October Mr. Daggett was in Chicago, and there the negotiations were renewed. The plaintiff inquired of Mr. Daggett as to the price of yearly leases in Milwaukee. The next meeting was in Milwaukee, where the plaintiff went for the purpose of getting Mr. Daggett to raise his offer. The amount of the compensation was finally fixed over the telephone at $3,900 a year. During the course of the negotiations Mr. Daggett informed plaintiff that the company had been in the habit of paying a bonus based on the annual salary of employees; that the bonus would in part make up the difference between what the plaintiff asked and the defendant was willing to pay.

Plaintiff moved his family to Milwaukee, made a lease on a house for a year. They were entertained at the home of the Daggetts, and the plaintiff reported for work November 1, 1930. It is perfectly clear from the evidence that both parties expected the employment to be permanent. The defendant bank is an old well-established institution. The plaintiff was a reputable salesman, had never had but two employers and was looking for a permanent connection. After the plaintiff entered upon his employment, his salary was paid to him in biweekly installments, each payment being one twenty-fourth of the $3,900 annual salary. As of January 1, 1931, the plaintiff received his pro rata share of the bonus based on two months' salary and his pro rata share thereafter. On July 1, 1932, the defendant reduced the plaintiff's salary to $2,700 per annum and that amount was thereafter paid and received by him without objection or comment. In the month of July, 1933, the defendant notified the plaintiff that it would dispense with his services as of August 1, 1933. When first notified of the termination of the employment, plaintiff made no claim for salary due him beyond the time fixed by the defendant.

Shortly thereafter and after consulting counsel he demanded salary for one year, two weeks' vacation with pay, which demand was refused, and an action was begun. Later that action was dismissed, and this action was begun. In this action the plaintiff demanded that he be paid for eleven months, being from August 1, 1933, to July 1, 1934, claiming that the reduction of salary from $3,900 per annum to $2,700 per annum made a new contract for a year as of July 1, 1932. Upon the trial the court found:

“That it was the intention of the parties as externally manifested to each other by the reasonable interpretation of their words and conduct at all times prior to, at the time of, and subsequent to the making of said contract (contract of November 1, 1930), that the term of plaintiff's employment thereunder should be a year.”

The court, however, found that it was the intention of the parties that the reduction in salary was a modification of that part of the contract relating to compensation; that the remainder of the contract was to be in force, and awarded the plaintiff compensation for the months of August, September, and October. The court in effect found that the contract was employment by the year and was renewed from year to year by the continuation of the relationship without notice.

Upham, Black, Russell & Richardson, of Milwaukee (Fraley N. Weidner, of Milwaukee, of counsel), for appellant.

Murray & Higgins and Kersten & McKinnon, all of Milwaukee (Milton T. Murray and Arlo McKinnon, both of Milwaukee, of counsel), for respondent.

ROSENBERRY, Chief Justice.

[1][2] The burden was upon the plaintiff to establish by a preponderance of the evidence the terms of his alleged contract. Disregarding the variance between the complaint and the proof, plaintiff was required to show that at the time he entered upon the employment he had a contract for the term of one year from November 1, 1930. The plaintiff does not claim that the term of the employment was ever specifically mentioned between him and Mr. Daggett or any other representative of the defendant company. Plaintiff freely admits that the rule in Wisconsin is that a hiring at some specified amount per month or year in the absence of other facts is an indefinite hiring which may be terminated at the will...