Does an employment agreement adequately specify a term by stating: “Compensation for Vice President – Driver Resources: $1,250 per week for 52 weeks = $65,000.00” (employee’s brief at 5)? Tettamble says, “No.” Is the prior authority indicating a term has not been stated comparable to that in Tettamble? Well, let’s see.
Brookfield v. Drury College, 123 S.W. 86, 94 (Mo. App. 1909), states:
The law in this state has been well stated that an indefinite hiring at so much per day, or per month, or per year, is a hiring at will, and may be terminated by either party at any time, and no action can be sustained in such case for a wrongful discharge.
Fair enough. So, we will see the following as giving rise to at-will employment:
“A. All the contract as made by Mr. Harris was one hundred and fifteen dollars a month; did not say when it started or when it was to end.”
Evans v. St. Louis, I.M. & S. Ry. Co., 24 Mo.App. 114 (1887).
“$12.50 per week for myself and $7.50 per week for my son Arthur, who is 24 years old and grown up in the business, a good hand, and $5 per week for another helper ….”
Harrington v. F.W. Brockman Commission Co., 81 S.W. 629 (Mo. App. 1904).
The Tettamble court describes prior authority as holding the following statements create at-will employment:
salary is to be $12,000 per year
(citing Campbell v. Sheraton Corp. of America, 253 S.W.2d 106, 110 (Mo. 1952))
your compensation for the year 1991–92, effective July 1991, computed at an annual rate, will be:
Your first monthly salary payment based on this rate will be made on July 31, 1991.
(citing Clark v. Washington University, 906 S.W.2d 789 (Mo. App. E.D. 1995)).
What’s the difference? So, in Tettamble, the writing does not simply state a dollar amount per period. Rather, it states two dollar amounts and two periods. The court’s reading of the provision gives no effect to the language “for 52 weeks = $65,000.00”—it’s surplusage. So, what’s the second, longer period, and the second, larger dollar amount to mean, if not to express a term? And, of course, a construction resulting in some language being surplusage is disfavored, and reading additional language referencing $65k and 52 weeks as not specifying a term results in that language being surplusage.
It seems that the Missouri approach is traceable to Finger v. Koch & Schilling Brewing Co., 13 Mo. App. 310 (1883). So, what’s Finger’s authority? Prevailing counsel in Finger cites Wood on Master and Servant, sec. 134, for the proposition that an engagement at “so much per year” is not for a term. So, what does Wood on Master and Servant say?
“[I]f A agrees with B to work for him eight months for $104, or $13 a month, this will not only be treated as a contract for eight months’ service, but also as an entire contract, performance of which is a condition precedent to a recovery of any portion of the wages ….
H. G. Wood, A Treatise on the Law of Master and Servant § 134, at 273 (1877).
(Note that courts long-ago would have been more willing to provide that, where the agreement was for a term and not divisible, an employee in breach of an employment for a term would have been unable to recover anything, an outcome rejected in Britton v. Turner, 6 N.H. 481 (1834)–Britton reflecting the modern trend.)
Do we really think there is a meaningful difference between the following: An agreement to work—
$1,250 per week for 52 weeks = $65,000.00
for 52 weeks for $65,000, or $1,250 a week
Perhaps we need another tedious rule of construction. I don’t know; what about contra proferentem?
The background on construction of employment allegedly for a term is somewhat complex. We plan to devote our next post to more detail on that.