Witte v. Brasington

• Decision Date: 28 May 1952
• Docket Number: Civ. A. No. 2898.
• Citation: 125 F. Supp. 784
• Parties: Norman WITTE, Plaintiff, v. Harold M. BRASINGTON and Darlington International Raceways, Inc., Defendants.
• Court: U.S. District Court — District of South Carolina

125 F. Supp. 784

Norman WITTE, Plaintiff, v. Harold M. BRASINGTON and Darlington International Raceways, Inc., Defendants.

Civ. A. No. 2898.

United States District Court E. D. South Carolina, Florence Division.

May 28, 1952.

James P. Mozingo, III, Darlington, S. C., for plaintiff.

Samuel Want, Darlington, S. C., for defendants.

WYCHE, Chief Judge.

The plaintiff in this case is suing to recover damages for an alleged breach of contract of employment made by the defendant Brasington with him. It is claimed by the plaintiff that this contract was adopted by the defendant corporation and that therefore the liability in this case, if any, extends to the defendant corporation as well as to the defendant Brasington. Counsel have assumed in their arguments upon the matter before me that the two defendants may be treated as in the same position.

The enterprise in connection with which the contract of employment was made is an automobile race track located near the City of Darlington, South Carolina. The project was started by the defendant Brasington. While the construction of the project was in progress and before any major phase thereof had been completed, the following contract of employment was made by the defendant Brasington with the plaintiff: "December 16, 1949 This agreement by and between Harold Brasington, party of the first part and Norman Witte, party of the second part. It is agreed by both of the above parties as follows: — that Norman Witte, party of the second part agrees to assume the directional and public relations management for an enterprise known as the International Raceways and Tri-County Fair and Exposition, located in Darlington, South Carolina, county on the following financial basis: after purses, taxes, sanctioning and officiating fees are deducted from the total gross gate receipts then Norman Witte, party of the second part is to realize for his services the following fees: 10% of net receipts with $1,000 minimum guarantee.

"It is further agreed that Harold Brasington, party of the first part will complete all work in connection with the full and complete construction of the International Raceway and Tri-County Fair and Exposition to have resulted into a raceable course as shown on blueprints, defray the cost of exploitation and advertising and otherwise have fully prepared a site where races and fair and other exhibitors can be successfully staged and conducted without any financial costs of Norman Witte, party of the second part, other than his time, efforts and good will.

"It is further agreed that after all costs of erection and construction is satisfied and paid then Norman Witte, party of the second part is to receive compensation as follows: 20% of net gate receipts after above described regular and usual expense are deducted.

"(Signed) H. M. Brasington party of the first part "(Signed) Norman Witte party of the second part."

At the instance of counsel for the parties, I held a pre-trial conference on March 20, 1952. The purpose of this conference was to obtain a ruling of the Court on the legal question, whether the contract in question was one terminable by the defendants at will.

In the original complaint the plaintiff claims damages in the amount of $200,000. In this complaint he describes the cause of action as one for breach of a contract of employment of "a permanent nature". In an amended complaint duly served and filed, no stated amount of damages is claimed. The prayer for relief is that the Court adjudicate the validity and binding effect of the contract in question, the rights and obligations of the parties thereunder, the breach, the period of time the contract was to be in force, and whatever sums are due and owing to the plaintiff. The amended complaint describes the contract in question as one to run "for a long period of time."

The defendants answered the amended complaint, setting forth several defenses on the merits, but presenting as the main legal issue in the case the contention of the defendants that the contract of the plaintiff was a contract of employment with no stated time for termination, and that such a contract is subject to cancellation by the unilateral action of the defendants.

In presenting the above legal issue, counsel on both sides have relied not only upon the pleadings, but also upon depositions taken and answers to interrogatories propounded by the plaintiff.

The rule of law applicable here is that where a contract of employment fails to specify the term of employment, the contract is terminable at the will of either the employer or the employee, but with the qualification that if the employee in addition to contracting for the performance of services, gives to the employer some independent consideration, the contract will be held to be binding upon the employer for such period as can be found from the circumstances to have been in the contemplation of the parties. The general rule has been frequently invoked and applied.

Both the rule and the exception to it were stated recently by the Supreme Court of South Carolina in the case of Orsini v. Trojan Steel Corp., 219 S.C. 272, 64 S.E.2d 878, 879, where the Court said: "The general rule is that under ordinary circumstances a contract to furnish employment permanently, or so long as the employee's services shall be properly performed, or for a similar indefinite period, is no more than an indefinite hiring, terminable at the will of either party, and is therefore unenforcible as to its duration. But this rule does not apply where the employee has given a good consideration in addition to the services rendered. 35 Am.Jur. 460; Weber v. Perry, 201 S.C. 8, 21 S.E. 2d 193, 194; or as stated in Shealy v. Fowler, supra 182 S.C. 81, 188 S.E....