Richard Dale WALKER
v.
GOODSON FARMS, INC. and J. Michael Goodson, and Edward F. Moore.
No. 874SC1020.
Court of Appeals of North Carolina.
June 21, 1988.*126 Timothy W. Howard, Clinton, for plaintiff-appellee.
Ward and Smith, P.A. by Michael P. Flanagan and Douglas K. Barth, Greenville, for defendants-appellants.
WELLS, Judge.
The threshold issue in this appeal is whether there existed sufficient evidence to support the jury's finding of an employment contract for a five-year term. Our review of the evidence leads us to conclude that the jury was entitled to find the creation of a valid and enforceable contract based upon the terms of the 31 January letter.
In their first argument, defendants contend that because plaintiff failed to show the legal formation of a contract of employment, the trial court erred in denying defendants' motions for directed verdict and judgment notwithstanding the verdict.
A motion for judgment notwithstanding the verdict under G.S. § 1A-1, Rule 50(b) of the North Carolina Rules of Civil Procedure constitutes a renewal of a motion for directed verdict and requires the trial court to view all the evidence and conflicts therein in the light most favorable to the nonmovant. Penley v. Penley, 314 N.C. 1, 332 S.E.2d 51 (1985); Northern National Life v. Lacy J. Miller Machine, 311 N.C. 62, 316 S.E.2d 256 (1984). Motions for directed verdict and judgment notwithstanding the verdict should be granted only when the evidence is insufficient to support a verdict in the nonmovant's favor. Penley, supra. The evidence in the present case, when viewed in the light most favorable to plaintiff, was sufficient to support the verdict.
Defendants rely on our Supreme Court's decision in Normile v. Miller and Segal v. Miller, 313 N.C. 98, 326 S.E.2d 11 (1985) to support their argument that plaintiff failed to show that an employment contract had been formed. A valid contract may arise only where the parties assent and their minds meet as to all terms. Goeckel v. Stokely, 236 N.C. 604, 73 S.E.2d 618 (1952). This meeting of the minds requires an offer and acceptance of the same terms. If, in his acceptance, the offeree attempts to change the terms of the offer, such constitutes a counter-proposal and thereby a rejection of the initial offer. Normile, supra; Richardson v. Storage Co., 223 N.C. 344, 26 S.E.2d 897 (1943). Defendants argue that because the 31 January letter was not signed and accepted by plaintiff and because the 25 February letter acted as a counteroffer to the January letter, a contract was never formed. However, the present case is distinguishable from Normile.
In the construction of a contract, the parties' intentions control, Cordaro v. Singleton, 31 N.C.App. 476, 229 S.E.2d 707 (1976) and their intentions may be discerned from both their writings and actions. Bank v. Supply Co., 226 N.C. 416, 38 S.E.2d 503 (1946); Zinn v. Walker, 87 N.C.App. 325, 361 S.E.2d 314 (1987); Heater v. Heater, 53 N.C.App. 101, 280 S.E.2d 19 (1981). Unlike Normile, the parties in the present case affirmatively acted upon their negotiations which tended to show the formation of an agreement. Plaintiff worked for defendants for two and one-half years and defendants paid plaintiff according to the 31 January letter. In Normile, however, there was no subsequent conduct of the parties by which their intentions regarding the sales contracts might have been determined. Instead, the issue became one of determining which of the sales contracts had actually been accepted and incorporated into an enforceable contract. The Normile court therefore was never required to consider and construe the meaning of the parties' conduct which makes the decision there inapplicable to the present case.
Rather, the case before us presents facts not unlike those in our recent decision in *127 Zinn v. Walker, supra, where this Court held as enforceable preliminary agreements to agree, the terms of which agreements apparently directed the parties' actions. The decisive factor in Zinn, and in the present case, was the parties' conduct and the interpretation they gave to their negotiations. That plaintiff in the case sub judice worked as a general manager for two and one-half years and received a salary and insurance benefits as set out in the 31 January letter was persuasive and convincing evidence of a contract based on that letter.
Defendants also contend that because the parties had intended to place the terms of their negotiations in writing, their having failed to consummate such a written agreement precludes the finding of a contract. Likewise, they argue, if there was no contract for employment, defendants Goodson and Moore could not have been guarantors on the contract. We disagree.
We have earlier held in this case that a valid and enforceable employment contract was formed based on the terms of the 31 January letter. The parties' failure to have drafted a final written agreement, while perhaps relevant, is not determinative of the issue. See Zinn v. Walker, supra. We therefore hold that the parties' failure to execute a written contract does not preclude the creation of an enforceable agreement nor does it discharge defendants from their guarantor liability.
In their second argument, defendants assign as error the trial court's denial of their motions to dismiss and for judgment notwithstanding the verdict on the issue of plaintiff's discharge from employment. Defendants claim that even if a valid employment agreement were found, plaintiff's drinking on the job and making cash advances from GFI funds gave rise to just cause for terminating his employment.
Defendants urge us to hold as a matter of law that habitual drinking of alcohol on an employer's premises during working hours constitutes "just cause" for discharge. In support of their assertion, defendants rely on our decision in Hester v. Hanes Knitwear, 61 N.C. App. 730, 301 S.E.2d 508 (1983) where we addressed the question of whether an employee's use of marijuana at work in violation of the employer's rules constituted "... misconduct connected with work" under G.S. § 96-14(2). Although we held that the employee's use of marijuana at work did constitute "misconduct," our holding there should not be interpreted to have addressed the question of "just cause" for terminating an employment contract, and that decision is therefore not controlling here.
We instead look to our Supreme Court's decision in Wilson v. McClenny, 262 N.C. 121, 136 S.E.2d 569 (1964) where the Court held that an employee's use of alcohol "... to the extent that it interfere[s] with the proper discharge of his duties ..." may constitute just cause for termination of the employment contract. The Court also made clear that determination of whether the employee's use of alcohol in fact interfered with his work was a question for the jury. Id.
In the present case, the jury having heard all the evidence determined that plaintiff's use of alcohol did not so interfere with his work as to justify his discharge. Given the testimony of several witnesses who observed no adverse effects in plaintiff's work, we find there existed sufficient competent evidence to support the jury's verdict.
The jury was also unpersuaded that plaintiff's cash advances from GFI funds gave rise to "just cause" for discharge. The evidence showed that plaintiff made such advances in the course and interest of operating GFI and not for his own benefit. The jury was therefore entitled to have found that plaintiff's use of GFI funds did not constitute "just cause" for discharge from his employment. Accordingly, we overrule defendants' second argument and first, second and third assignments of error.
Finally, defendants make a complicated argument concerning errors contained in the trial court's instructions relating to offer, acceptance, and counteroffers; however, as defendants failed to object to *128 the instruction before the jury retired and thereby properly preserve the exception for appeal as required by Rule 10(b)(2) of the Rules of Appellate Procedure, defendants have waived their right to assert this issue on appeal. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986).
For the reasons stated, we find no error in the trial.
No error.
PARKER and ORR, JJ., concur.