Vondras v. Titanium Research & Development Co.

• Decision Date: 11 June 1974
• Docket Number: No. 34731,34731
• Citation: 511 S.W.2d 883
• Parties: James J. VONDRAS, Plaintiff-Respondent, v. TITANIUM RESEARCH & DEVELOPMENT COMPANY, a corporation, Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 883

511 S.W.2d 883

James J. VONDRAS, Plaintiff-Respondent, v. TITANIUM RESEARCH & DEVELOPMENT COMPANY, a corporation Defendant-Appellant.

No. 34731.

Missouri Court of Appeals, St. Louis District.

June 11, 1974.

Motion for rehearing or Transfer Denied July 15, 1974.

Application to Transfer Denied Sept. 9, 1974.

Husch, Eppenberger, Donohue, Elson & Cornfeld, Myron Gollub, St. Louis, for defendant-appellant.

J. B. Carter, Paul Schramm, Clayton, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from a judgment entered following a jury verdict in a breach of employment contract case. Plaintiff was discharged by defendant after serving two months of an alleged 18 month contract of employment. The jury verdict was for $30,750 which the trial court reduced by remittitur to $16,000. The cause was originally heard in division and transferred for rehearing by the court en banc after opinion. Following that argument it was reassigned to the writer.

There was substantial conflicting evidence adduced at the trial but we review the record on the basis of the facts most favorable to the plaintiff. Prior to his employment by defendnat, plaintiff was an independent manufacturer's representative for several different companies. Defendant is in the business of customized titanium hot-forming for the aerospace industry. In 1967 it became interested in the employment of a full-time manufacturer's representative to handle its product line. Plaintiff and Conrad Kubiak, secretary treasurer of defendant, and Francis Flynn, its president, had discussions leading to the employment of plaintiff for the position. Plaintiff agreed to the employment and requested a letter memorandum of the terms. That was furnished and we set the letter out in toto in the margin. ¹ Plaintiff terminated his relationship with other companies and began his employment but was discharged after two months by defendant. Defendant contended that the discharge was because plaintiff's work was unsatisfactory. This issue was resolved in favor of the plaintiff by the jury and defendant makes no complaint in that regard on appeal.

Instead it directs its main attack against the failure of the trial court to direct a verdict on the basis that the contract was void for want of mutuality; was unilateral and therefore unenforceable to the extent it remained executory; that plaintiff admitted failure of performance; and that as a matter of law plaintiff sustained no damage. Additionally defendant contends plaintiff was allowed to make a prejudicial argument and that plaintiff's verdict directing instruction was erroneous. ²

Defendant bases its contentions concerning the unilateral nature of the contract and the lack of mutuality upon Solace v. T. J. Moss Tie Co., 142 S.W.2d 1079 (Mo.App.1940). That case involved a 'contract' in which defendant promised to pay plaintiff for all railroad ties which he might produce over a five year period. Plaintiff did not promise to produce any ties but was paid for those he did produce. The contract was held to be void for lack of mutuality and unenforceable as to the executory portion. Solace presents the classic unilateral contract where one party promises to pay another for services or product which the other may or may not, at his discretion, supply. We think it clearly distinguishable from the case at bar for several reasons. First, the contract here is not unilateral. Contracts in which performance depends upon the wish, will or pleasure of one of the parties, as Solace did, are unilateral.

But as stated in Fullington v. Ozark Poultry Supply Co., Mo., 327 Mo. 1167, 39 S.W.2d 780 (1931) l.c. 782(2):

'. . . a different rule of law should and does govern those functions of men to which a rule of reason can be applied. Of these there are acts which by agreements permit or require the exercise of judgment, or discretion, measured and limited by the concrete, extrinsic facts and circumstances of the particular case. These acts, predicated on the judgment of the actor, are capable of being tested by other men, applying the powers of their own minds and the lessons of human experience to the thing done and under scrutiny.'

Employment contracts normally fit that category. Implicit in every employment contract wherein an employer promises to pay a salary is a concomitant promise by the employee to serve and to devote his best efforts to the business of his employer. 'An agreement to serve may be implied.' Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624. By their mutual promises (that of the employer to pay, that of the employee to serve) the parties create a bilateral contract. See Fullington v. Ozark Poultry Supply Co., supra; Beebe v. Columbia Axle Co., supra, Griswold v. Heat Incorporated, 108 N.H. 119, 229 A.2d 183 (1967); Nikas v. Hindley, 99 Ga.App. 194, 108 S.W.2d 98 (1959); Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917).

Here both parties regarded plaintiff's employment as full-time. Defendant's promise to pay plaintiff $1,000 per month salary was conditioned upon plaintiff's implied promise to devote his best efforts to his employer's business. It was, in fact, the claimed failure of plaintiff to perform his promise upon which defendant attempted to justify plaintiff's termination. The contract was based upon mutual promises to pay and to work and was bilateral. It is not necessary, even if the length of employment applied to the employer only, that each term or condition of a bilateral contract apply to both parties, if there is sufficient consideration to support a bilateral contract, as there is here. See Newhall v. Journal Printing Co., 105 Minn. 44, 117 N.W. 228 (1908).

Additionally, we do not believe the term of employment set forth in the letter applies only to the employer. It is not so restricted by its wording; and it is reasonable to conclude that it applied to and bound both parties. Conceding that personal service contracts cannot generally be specifically enforced, that does not preclude either party from recovering provable damages resulting from the breach by the other party. The employer also may recover his damages for breach of contract by the employee. See State ex rel. State Department of Public Health and Welfare v. Luster, 456 S.W.2d 600 (Mo.App.1970); Roth v. Speck, 126 A.2d 153 (D.C.App.1956).

Nor do we concur with defendant's categorization of plaintiff's verdict-directing instruction as based upon unilateral contract. It hypothesizes offer, acceptance, breach and damage, the elements of a breach of contract action, all of which were in dispute. Whether consideration was sufficient to establish a contract is normally a question of law for the court and not a question of fact for the jury.

Defendant contends that the evidence establishes as a matter of law that plaintiff suffered no damages because he had income during the sixteen months following his dismissal in excess of his monthly salary. The burden of proof of mitigation of damages is upon the defendant. Streett v. Laclede-Christy Co., 409 S.W.2d 691 (Mo.1966) (9). Plaintiff admitted the income, but contended it was for work he had done as a manufacturer's representative prior to his employment by defendant and which he would have received anyway or was advances for work to be done in the future. Additionally, defendant, through objections, precluded any evidence of what expenses plaintiff may have incurred in producing the income involved. Whether plaintiff's damages were mitigated, and if so, in what amounts depends in this case on his net income (after expenses) not gross income. The matter of mitigation was a fact for the jury which found against defendant, and defendant's proof did not establish mitigation or the absence of damages as a matter of law.

Defendant contends that plaintiff's failure to supply a resume was a failure of performance on plaintiff's part. No request for such a resume was made except in the letter and plaintiff's discharge was not based upon the failure to provide such a resume. There is no persuasive evidence that supplying of a resume was a material element of the contract and this failure did not as a matter of law preclude plaintiff from recovery.

The record here does not warrant our considering the claim of prejudicial argument. No objection by defendant is contained in the transcript approved by the parties.

Defendant's contention that plaintiff's verdict-director failed to negative defendant's affirmative defense instruction of mitigation is also without merit. The 'affirmative defense instruction' to which defendant refers said: 'Your verdict must be for the defendant if you believe:

Fourth, that plaintiff suffered no damages as the result of his discharge by defendant.'

The instruction was a converse, not an affirmative defense instruction. No reference in plaintiff's verdict-director was therefore required.

Judgment affirmed.

DOWD, C.J., and CLEMENS, KELLY and GUNN, JJ., concur.

WEIER, J., dissents.

McMILLIAN, J., dissents in separate opinion in which WEIER, J., concurs.

SIMEONE, J., not participating.

McMILLIAN, Judge (dissenting).

I respectuflly dissent.

To adopt the majority opinion is to totally ignore plaintiff's own theory of the case. Plaintiff candidly admits, both at trial and on this appeal, that he was proceeding upon the theory that the contract in issue was unilateral. Interestingly enough, plaintiff also conceded that he was not bound by the contract and could stop performance at any time he chose to do so. Moreover, a cursory examination of plaintiff's verdict-director, set out in footnote number two (2) in the majority opinion, indicates that the instruction submitted a promise for an act, i.e., a unilateral contract. Nowhere does the questioned instruction submit a bilateral agreement, i.e., an agreement based upon mutual promises each given in exchange for the other.

While the majority opinion recognizes the...