Russell v. H. W. Johns-Manville Co.
Russell v. H. W. Johns-Manville Co.
Opinion of the Court
This appeal is from a judgment rendered and entered in the plaintiff’s favor in an action *573 brought by him to recover the sum of $600 alleged to have become due and payable by virtue of the following state of facts: The plaintiff in the month of October, 1918, was a salaried employee of the defendant upon a month-to-month employment, at a monthly salary of $250, and had been such for several years prior to that time. In October, 1918, the defendant issued to all of its salaried employees the following notice:
“Office Notice #1451
“October 15, 1918.
“To all employees S. F. & L. A.
“Mr...........................
“In 'recognition of efficient service during the year, the Company will pay as additional compensation for 1918 to all salaried employees who have been in the Company’s employ for the calendar year of 1918 20% of the yearly salary in each case, payable 10% January 1, 1919, and 10% March 1, 1919.
“We are notifying you at this time so that it may help you in making your subscription for Liberty Bonds.
“(Signed) W. S. Greenfield.’’
After receiving this notice the plaintiff continued in the employ of the defendant until the sixteenth day of November, 1918, when he was discharged, and on November 30, 1918, was paid for his salary in full to that date, according to the terms of his former employment. He thereafter commenced this action to recover the sum of $600 alleged to have become due by virtue of the above written notice received by him in common with all the rest of the defendant’s salaried employees.
Upon the trial of the cause the plaintiff testified and the court found: “That said plaintiff, relying upon the additional compensation promised by said defendant, in said notice, remained in the employ of said defendant, and intended to remain in its employ for the balance of the year 1918, and subscribed through said defendant for seven hundred dollars ($700) worth of said Liberty Bonds, which subscription said defendant, subsequently, and after plaintiff’s discharge, hereinafter alleged, canceled without the knowledge or consent of said plaintiff.”
Having made the foregoing finding, and having also found that the plaintiff on or about November 16, 1918, was dis *574 charged from his said employment by the defendant without just or any cause, the trial court gave its judgment in the plaintiff’s favor for the amount sued for, and from such judgment the defendant has prosecuted this appeal.
“Where, during the pendency of a term of employment, at a stipulated salary per month, a voluntary agreement, entirely apart from the contract of employment, is made by the employer, to pay to the employee as a bonus, some indefinite and undetermined share in the profits of the business, contingent ‘on continuous and satisfactory service’ and this voluntary agreement is not supported by any change in place, hours, character of employment, or other consideration, the agreement is not enforceable at law as it is nudum pactum, and the grant of the bonus so promised, is altogether optional, because dependent upon whether the services of the employee are ‘ satisfactory to the employer, ’ and of this he is, in such a case, the sole judge.”
The case of Haag v. Rogers, 9 Ga. App. 650, [72 S. E. 46], cited by the respondent as supporting his contention, is clearly distinguishable from the ease at bar, since in that case the obligation to pay the added compensation of the employee arose from an express contract between the employer and employee to that effect and was not in the nature of a voluntary gratuity. The Georgia court of appeals in the case just cited expressly notes the distinction between it and the ease of Davis & Co. v. Morgan, supra, in these words: “In that case the extra compensation was purely a promised gift or bonus; in this case the extra compensation was a part of the wages promised, though it was only conditionally promised. ’ ’
That portion of the notice issued by the defendant and above quoted, which relates to the purchase of liberty bonds by its employees, while referred to by the trial court in its findings to the effect that the plaintiff, relying upon the terms of said notice, did invest in liberty bonds, has not been and could not well be relied upon by the respondent as a basis for this action or as a ground for upholding this judgment, since plaintiff’s pleadings allege and the find *576 ings of the court show that whatever investment in liberty bonds the plaintiff made through his said employers and after the issuance of said notice was subsequently canceled by the latter, and even though it is alleged and found that such cancellation was without the plaintiff’s knowledge and consent, it nowhere appears that he suffered any detriment either by his subscription to said bonds or by his employer’s cancellation of such subscription after his discharge. It may be finally noted that neither in the plaintiff’s complaint nor proofs, nor in the findings of the court, is there any showing or claim that the defendant acted fraudulently or in had faith in respect to the plaintiff’s discharge from its employment further than the plea and finding that his said discharge was without cause. Under its month-to-month employment of the plaintiff, unaltered as we think it was by the offer of this bonus, the defendant had and retained the full legal right to discharge the plaintiff at any time without cause, and this being so we are of the opinion that the judgment in this case cannot be upheld.
Judgment reversed.
Waste, P. J., and Kerrigan, J., concurred.
Reference
- Full Case Name
- SAMUEL P. RUSSELL, Respondent, v. H. W. JOHNS-MANVILLE COMPANY (A Corporation), Appellant
- Cited By
- 14 cases
- Status
- Published