Opinion
No. 3519.
Decided June 5, 1945.
Although a contract of employment provides that it could be terminated by the employer upon giving written notice to the employee, an oral notice may be sufficient compliance therewith if the employee has received all the information he would otherwise have received and is not prejudiced by failure to be given a written notice.
ACTION for breach of contract. Trial by the Court with verdict for the plaintiff. At the close of the plaintiff's case the defendants moved for a directed verdict which motion was denied and the defendants excepted. At the close of all the evidence the motion was renewed but no ruling thereon was made. Following verdict the defendants moved that the verdict be set aside. This motion was denied subject to the defendants' exception.
During the course of the trial certain exceptions were taken by the defendants as shown by the record. These exceptions together with those above set forth were reserved and transferred by Connor, J.
The Court's findings are as follows:
"The plaintiff and the defendants entered into an agreement on April 14th, 1941 whereby the defendants were to employ the plaintiff to manage a motion picture theatre in Somersworth for a period of one year at a salary of Twenty-Five Dollars per week for the first six months of the term and at the rate of Fifteen Dollars per week for the remainder thereof. The plaintiff immediately assumed his duties and rendered certain services. Shortly thereafter the defendant Hebert verbally notified the plaintiff that he was discharged and his services no longer required. By its terms the contract could be terminated by the employers upon giving thirty days' written notice to the plaintiff and upon payment of four weeks' salary `in the amount above set forth.' The Court interprets the language above quoted as having application to the salary prevailing at the time of notice of termination. The defendants failed to comply with the terms of the contract defining the requirements of termination. Written notice was not given nor tender of four weeks salary made.
"The Court finds that the contract was breached by the defendants.
"The service to be rendered by the plaintiff was of a character that opportunity of engaging in similar employment after the breach was definitely limited. While he made no effort to obtain such, the Court finds that his failure to do so was not unreasonable. With his knowledge of conditions prevailing in that vicinity and the lack of opportunity to obtain similar work, he was not required to seek that which he knew was not available.
"In accordance with the foregoing findings, a verdict is found for the plaintiff in the sum of One Thousand and Forty Dollars ($1,040) and taxable costs."
F. Clyde Keefe, for the plaintiff.
McCabe Fisher, for the defendants.
The evidence discloses the following: Plaintiff testified that on April 16, 1941 Hebert, one of the defendants, told the plaintiff he was through. Whereupon the plaintiff said, in part, he had a contract with them (the defendants) for a year, that he would expect them to live up to it, and upon specific questioning as to the written notice provision in the contract, he said "I told him, `you give me a notice in writing thirty days', otherwise I should hold them to the contract." Later he expressed it thus: "I said I had a contract with them and I would expect them to fulfill the contract. If they did not give me a thirty-days' notice in writing as per the contract it would be all right with me but in any event I would hold them to the contract." He testifies he understood he was through working for them from that day on. He did not at any time thereafter report for duty nor notify the defendants that he was ready and willing to fulfill his part of the contract. Defendants claim this amounts to a waiver of the clause in the contract that the defendants had the privilege of terminating the contract at any time by giving the plaintiff a thirty days' written notice to that effect, and by paying the plaintiff four weeks' salary. We do not have to pass on this issue, for the case is to be decided on another proposition of law that is determinative of the rights of the parties.
"It [a written notice] is merely the vehicle used . . . to transmit . . . information." Bachman v. Insurance Co., 78 N.H. 100, 105. See also Canney v. Insurance Co., 88 N.H. 325, 329; Perry v. Insurance Co., 67 N.H. 291, 293, 296.
"It is an old maxim of the law that it compels no man to do a useless act, and the principle was applied in the time of Coke, if not before, to the case of a conditional promise." 3 Williston, Contracts (Rev. ed.), p. 2008.
The oral notice in the instant case gave the plaintiff all the information he would have received had a written notice been given. He understood he was through, and acted accordingly. His conduct corroborates his understanding of what the oral notice meant. He was not prejudiced by failure to be given a written notice (Mulhall v. Company, 80 N.H. 194, 204), and consequently is not entitled to greater rights than if a written notice had been given. If the latter had been given, he would have been entitled to receive four weeks' pay at the prevailing rate at the time, correctly found by the Court to be $25 per week and that is all he is entitled to receive now.
Judgment for plaintiff for $100.
All concurred.