Long v. Gilliam

94 S.E.2d 585 (1956)

244 N.C. 548

Mildred B. LONG v. Lucy E. GILLIAM and Margaret Gilliam Strock, t/a Mildred's Shop.

No. 247.

Supreme Court of North Carolina.

October 10, 1956.

*588 G. T. Carswell, James F. Justice, and Samuel M. Millette, Charlotte, for defendant appellants.

Blakeney & Alexander and Ernest W. Marken, Jr., Charlotte, for plaintiff appellee.

RODMAN, Justice.

The court's charge is not in the record. The only error assigned and relied on by the defendants is the refusal of the court to allow their motion of nonsuit. They now insist that the paper writing of May 3, 1952, is not in fact a contract of employment but a release and cancellation of a pre-existing contract, and that the court should, as a matter of law, have so construed it and hence allowed their motion of nonsuit.

That the paper cannot on its face be declared a cancellation and termination of a pre-existing contract of employment or a contract fixing a new rate of pay for subsequent employment seems clear. It recites (1) that the parties had, sixteen months prior thereto, made an oral agreement; (2) that it was desirable to reduce the terms of the agreement to writing; (3) that defendants had purchased a mercantile establishment of which plaintiff had been manager and which was operated under the given name of plaintiff; (4) that the rate of compensation to be paid plaintiff for services to be rendered had been fixed by agreement; (5) that the weekly salary in the amount of $25 had been paid to that date *589 and payment had also been made of the agreed percentage of the profits for 1951; (6) that the agreement to pay a percentage of the profits was based in part on the right to use plaintiff's name "Mildred," and that defendants might continue to so use the name; (7) that plaintiff was originally given the right to become a partner in the business but had surrendered that right.

It is to be noted that the instrument does not in express terms provide for cancellation or continuance of plaintiff's employment. Being for an indefinite term, it could be terminated at the will of either party. Howell v. Commercial Credit Corp., 238 N.C. 442, 78 S.E.2d 146; Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436; May v. Tidewater Power Co., 216 N.C. 439, 5 S.E.2d 308; Currier v. W. M. Ritter Lumber Co., 150 N.C. 694, 64 S.E. 763. But if the contract is not terminated by one of the parties, the employee is entitled to his compensation at the contract rate for the period worked.

There is at least indirect recognition in the instrument of May 3, 1952, that the employment had not terminated. The instrument makes no pretense of paying plaintiff for her portion of profits earned to May 3, 1952. It may suggest by permitting defendant to continue to use the name "Mildred's" that the relationship is to continue.

Since the contract does not terminate the relationship of employer and employee and since it is conceded that plaintiff continued to work for defendants from May 3, 1952, to December 29, 1953, what was the basis of her compensation? If the pleadings be given the liberal interpretation to which they are entitled, they suffice to allege that the employment continued with compensation to be paid during 1952 and 1953 as agreed upon in 1951 and as set out in the instrument of May 3, 1952, namely, a fixed compensation of $25 per week plus 40% of the net profits.

Plaintiff testified without objection: "I worked in Mildred's Shop in 1951, `52, and `53. The Shop was owned by Mrs. Gilliam and her daughter, Mrs. Strock. They operate a partnership. The exhibit just introduced is the contract under which I was employed at Mildred's Shop."

Defendant, by cross-examination of plaintiff's witness, elicited this testimony: "I knew that a provision was in it (contract) that she gave her name for 40% of the net profits and her clientele. I don't know whether it was to go on for life but it was understood that it was to go on as long as help was in that shop. That was Mrs. Long's understanding, and she told me that this is what she understood."

The evidence for defendants tended to show that a settlement was had of all matters on May 3, 1952, that the payment of $818.28 was a complete discharge of obligations of defendants to that date, and that thereupon a new contract of employment was entered into by which plaintiff was to receive $30 per week as compensation for the services to be rendered to defendants, and that she was not to receive any part of the net profits.

Defendants, in the brief filed here, point to the evidence of defendants in support of their motion to nonsuit. The motion to nonsuit must be tested by evidence favorable to plaintiff and without regard to conflicting evidence offered by defendants. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727.

The instrument dated May 3, 1952, does not of itself determine the controversy. The question at issue was: Did plaintiff continue to work for defendant at the rate fixed in January 1951, or did she, after May 3, 1952, work at a different rate agreed to by the parties? This was a question of fact for the jury. The motion for nonsuit was properly denied. There is

No error.