Summary
In Kinzfogl v. Greiner (1953), 265 Wis. 105, 60 N.W.2d 741, where there was an oral agreement between a manufacturer and a salesman which provided for increased commissions after five years and the employment was for an indefinite period, it was held that the contract, because terminable at will, was not void under the statute of frauds.
Summary of this case from Clarke Floor Machine Co. v. Devere Chemical Co.Opinion
October 6, 1953 —
November 3, 1953.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellants there were briefs by Michael, Spohn, Best Friedrich, attorneys, and George A. Schutt and Roy C. La Budde of counsel, all of Milwaukee, and oral argument by Mr. La Budde.
For the respondent there was a brief and oral argument by Ben L. Chernov of Milwaukee.
The complaint as amended sets up three alternative causes of action. Under the first cause of action the plaintiff alleges that the defendants are engaged in the manufacture and sale of chemicals, and that in November, 1945, they employed the plaintiff as a salesman of their products; that in April, 1948, the parties entered into an oral agreement under which, in addition to his regular monthly salary, plaintiff was to receive as further compensation 25 per cent of the net profits on certain of his sales. In August, 1948, this agreement was changed so that plaintiff was to receive one half of one per cent on certain gross sales made by him, and it was represented to him by the defendants that this arrangement would produce more income to him. Subsequently the agreement was further modified, but in each instance it was represented to the plaintiff by the defendants that his additional compensation would be equal to or exceed the amount due him from the computation of net profits; that the amounts paid to him were less than he was entitled to under the net-profits method, and he asked for the difference as damages.
The second cause of action realleged the facts stated in the first cause of action and claimed that the plaintiff was induced to enter into the changed agreements because of fraudulent representations made to him by the defendants, to his damage.
The third cause of action was added by amendment, and is for the recovery of the reasonable value of the services rendered by the plaintiff to the defendants over and above the amounts paid to him therefor.
The answer admitted the making of the agreement in April, 1948, and the changes therein, but denies that the changes were conditioned upon any statement by the defendants that the percentage-of-sales method would yield an amount equal to or greater than the net-profits method, and denied that any sum is due to the plaintiff.
As to the second cause of action, fraud was denied, and as to the third cause of action, the defendants denied that plaintiff is entitled to the reasonable value of his services as he had been paid all sums due him under the contract of employment, with its various modifications.
The defendants moved for summary judgment. In an affidavit in support of said motion the defendants stated that the additional compensation of the plaintiff was to be 25 per cent of net profits for a period of five years from April 1, 1948, and after that period the commission rate was to be increased to 50 per cent of the net profits. An order was entered March 16, 1953, denying their motion, and the defendants appeal.
The defendants contend that the first cause of action should be dismissed for the reason that the oral contract contained a provision for increasing commissions after five years, and it is therefore void under the provisions of the statute of frauds, sec. 241.02(1). There are allegations in the record that the only time the term of employment was discussed was at the time of the original hiring, and that plaintiff's employment was for an indefinite period. Such a contract, because terminable at will, is a valid contract even though it is not in writing. Kirkpatrick v. Jackson, 256 Wis. 208, 40 N.W.2d 372.
The defendants next contend that the second cause of action should be dismissed because plaintiff suffered no damage by being induced to modify a void contract, and if the original contract is valid, he has suffered no damage since the modification was by its terms conditional on plaintiff's receiving as much or more pay under it.
They also contend that the plaintiff's third cause of action should be dismissed because plaintiff has elected to affirm the modification which renders his employment contract a valid express agreement, precluding recovery on quantum meruit.
The trial court determined that there were issues of fact to be tried, and it is apparent that his determination is correct. The parties are in dispute as to the terms of the original agreement and as to whether or not the subsequent modifications thereof were conditioned upon the yield to the plaintiff being equal to or in excess of the amount to be due him under the net-profits method of computation. It is a fundamental rule that summary judgment will not be granted where an examination of the proper documents in connection with the motion shows that any issue of fact remains to be tried.
As previously mentioned, the separate causes of action set out in the complaint are in the alternative. Whether the agreements are valid or invalid will depend upon the testimony offered upon the trial. It is impossible to tell from the pleadings upon which cause of action the plaintiff will eventually rely.
By the Court. — Order affirmed.