Wilkinson v. Heavenrich
| Decision Date | 06 January 1886 |
| Court | Michigan Supreme Court |
| Parties | WILKINSON v. HEAVENRICH and others. [1] |
Error to Saginaw.
Wheeler & McKnight, for plaintiff and appellant.
Wisner & Draper, for defendants.
But one question is involved in this case, and that is as to plaintiff's right to maintain the action. The declaration alleges that on or about the fourteenth day of October, 1882 the defendants entered into a written contract with plaintiff as follows:
--That he worked for defendants under this contract, and in the business and employment aforesaid, and was always ready and willing to so work and be employed for defendants for the term of three years in said contract mentioned, and so worked until on or about the fifth day of July, 1884, when, without cause and against the wishes and contrary to the will and against the consent of the plaintiff, the defendants wrongfully dismissed and discharged the plaintiff from their employment, and refused to allow the plaintiff to work for them in the employment mentioned in said contract, whereby plaintiff lost the wages and profits and advantages which he would have derived from being continued in said employ, was thrown out of work, and was unable to get any employment for a long space of time, to-wit, for four months. A second count alleges that on the fourteenth day of October, 1882 defendants entered into another contract with plaintiff, and in consideration that plaintiff would work for them promised and agreed to employ the plaintiff for three years as cutter in defendants' merchant tailoring department, and pay him, as such cutter, at the rate of $3,500 each year, as earned, in sums and at times desired by plaintiff; that plaintiff entered upon such employment as cutter and worked until about the fifth day of July, 1884, when he was wrongfully and against his will discharged, etc. The plea was the general issue, with notice that plaintiff did not perform the contract on his part, and for that reason they discharged him.
On the trial, after the introduction of the agreement in evidence, it was admitted that the defendants constituted the firm of Heavenrich Bros. & Co. at the time of the making of the contract that is offered in evidence; that plaintiff was discharged on the seventh day of July, 1884; that the defendants paid the plaintiff in full for his services up to the time of his discharge; that upon the eight day of July the plaintiff served upon the defendants the following notice:
The plaintiff was sworn in his own behalf, and was cross-examined relating to his performance of the contract on his part; but the scope of his evidence was unimportant, in view of the charge given by the court, which was that there was no mutuality in the agreement, for Mr. Wilkinson was not bound to stay three years, and Heavenrich Bros. & Co. could not be bound to keep him three years, and, for want of such mutuality, the plaintiff could not recover; and he directed a verdict for the defendants.
The conflict of authority upon questions of the kind raised upon this record is truly bewildering, and the cases are incapable of being reconciled with each other; a large and respectable class holding that a contract which the statute of frauds declares shall not be valid unless in writing, and signed by the party to be charged therewith, need only be signed by the party defendant in the suit, and that it is no objection to maintaining such suit, and recovering upon such contract, that the other party did not also sign, and was not bound by its terms. 2 Kent, Comm. 510; 2 Starkie, Ev. 614; Smith's Appeal, 69 Pa.St. 481; Tripp v. Bishop, 56 Pa.St. 428; Perkins v. Hadsell, 50 Ill. 217; Old Colony R. Corp. v. Evans, 72 Mass. 31; Williams v. Robinson, 73 Me. 186. Another and equally respectable class of jurists hold that, unless the party bringing the action is bound by the contract, neither is bound, because of the want of mutuality. Lees v. Whitcomb, 14 E.C.L. 572; Sykes v. Dixon, 36 E.C.L. 366; S.C. 9 Adol. & E. 693; Krohn v. Bantz, 68 Ind. 277; Stiles v. McClellan, 6 Colo. 89. And see, also, as bearing upon the question, Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 Mich. 418; Liddle v. Needham, 39 Mich. 147; McDonald v. Bewick, 51 Mich. 79; S.C. 16 N.W. 240. The cases above cited are not intended to be exhaustive on either side of the proposition.
I shall not attempt a reconciliation when reconciliation is impossible; but as the question is new in this state, the court is left to adopt such view as appears to rest upon principle. It is a general principle in the law of contracts, but not without exception, that an agreement entered into between parties competent to contract, in order to be binding, must be mutual; and this is especially so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. Hopkins v. Logan, 5 Mees. & W. 241; Dorsey v. Packwood, 12 How. 126; Ewins v. Gordon, 49 N.H. 444; Hoddesdon Gas Co. v. Haselwood, 6 C.B. (N.S.) 239; Souch v. Strawbridge, 2 C.B. 808; Callis v. Bothamly, 7 Wkly. R. 87; Sykes v. Dixon, 9 Adol. & E. 693; Add. Cont. � 18; Pars. Cont. � 449; Utica, etc., R. Co.v. Brinckerhoff, 21 Wend 139; Lester v. Jewett, 12 Barb. 502.
Such was the case here. The consideration consisted of mutual promises of the parties, not to be performed within a year from the making thereof. The defendants' promise was in writing, and signed by them; but the plaintiff's promise does not appear in the writing signed by the defendant, nor was any note or memorandum made and signed by him promising to labor for defendants three years or any length of...
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