HAGAN
v.
JENKINS et al.
No. 385.
Supreme Court of North Carolina.
November 7, 1951.*381 Thos. J. White, Kinston, for plaintiff appellee.
Jones, Reed & Griffin, Kinston, for defendant appellants.
BARNHILL, Justice.
While defendants offered substantial evidence tending to show that plaintiff failed to perform his part of the contract, and plaintiff made certain admissions in respect thereto, plaintiff's evidence is not such as to warrant the conclusion, as a matter of law, either that he voluntarily terminated his employment or was guilty of such derelictions of duty as would justify his discharge. On this record these are questions for the jury to decide. Hence the motion to nonsuit was properly overruled.
During its charge to the jury the court instructed it as follows:
"You will understand, of course, that upon the acceptance of such offer, if in fact you find such offer was made and the same was accepted by the plaintiff, the law itself implied or does imply that during the employment the employee, in this case the plaintiff, would in good faith render efficient service and that he would not give *382 legal grounds for his dismissal or discharge from the service of defendants."
When plaintiff accepted employment as manager of defendants' parts department, the law implied a promise or covenant on his part to comply with, and render the services contemplated by, the contract; that he would render efficient, faithful, and continuous service; and in all other respects comply with and fulfill his part of the contract. Ivey v. Bessemer City Cotton Mills, 143 N.C. 189, 55 S.E. 613; Annotation 49 A.L.R. 474.
The law does not, however, raise any presumption or implication that plaintiff had performed the contract on his part and had not given any legal grounds for the termination of his employment.
The correct rule and the one stated by the court below are so similar in wording as to raise a conjecture that the error was due to a slip of the pen of the court reporter rather than a slip of the tongue of the judge. Insert after the words "does imply" the words "a promise or covenant" and we have a correct statement of the true rule. Even so, the record imports verity and we are bound by its contents as it comes to this court.
The court also instructed the jury as follows:
"Under such incentive plan the plaintiff was not obligated to serve any specified time, but the penalty imposed upon him, if in fact you find such plan existed, for voluntarily quitting the employment of the defendants, or if he was discharged for inefficient service or other legal ground, he would have forfeited or did forfeit the rights accruing to him to participate in the incentive plan agreement."
No rights accrued to plaintiff under the incentive plan unless he remained with the company "the entire twelve months" and planned "to continue with the company." The defendants contend that plaintiff voluntarily abandoned the contract or quit without legal justification. To say that by so doing he incurred a penalty and forfeited a right that did not then exist presented a persuasive reason for the jury to find the discontinuance of the contract was not due to his fault.
No doubt the charge was prompted by what was said in Roberts v. Mills, 184 N.C. 406, 114 S.E. 530, 28 A.L.R. 338. But it is not, in every instance, proper or permissible for a trial judge, in his charge, to adopt the language used by this court in discussing the reasons for its conclusion in a given case. Quinn v. Atlantic & Yadkin R. R., 213 N.C. 48, 195 S.E. 85. The conclusion as to the law, as expressed in the opinion, and not the reasoning, is the guide. Strictly speaking, there can be no forfeiture of a right which has not accrued. Hence the instruction involves an interpretation of the contract which might well have influenced the verdict of the jury.
We have taken note of the exception to this excerpt from the charge for another and more important reason. The plaintiff alleges a contract of hiring on an annual basis. The first issue is framed in accord with this allegation and the theory of the trial, with the exception of the noted departure, was that plaintiff was relying upon a contract that was to run from year to year.
It is evident that only the incentive plan part of the contract was reduced to writing. As to the oral provisions, the plaintiff merely testified he was promoted and was to receive $60 per week for his services.
Therefore, when plaintiff's testimony is considered as a whole, the court's conclusion that under the incentive plan plaintiff was not obligated to serve any specified time may constitute the correct interpretation of the contract. On the other hand, "the full twelve months" might possibly refer to the twelve months plaintiff had agreed to serve, if such was the fact. This we need not now decide. Indeed, the record does not leave us in position to decide with any degree of certainty.
The point is, the only interpretation the court placed on the contract is contained in this instruction and under its interpretation the contract was a hiring at will, or from week to week, with the understanding that plaintiff was to receive additional *383 compensation if he remained with the company for at least twelve months. If it is or was this type of contract, the defendants were as free to discontinue the employment as plaintiff was to leave. They would be liable in damages only in the event they discontinued the employment for the ulterior purpose of depriving plaintiff of his incentive pay, and then only to the extent of such loss.
Thus it appears that the instruction is in direct conflict with the plaintiff's allegations, the theory of the trial, and other parts of the charge. Upon its correctness the rights of the parties in large measure depend. Neither plaintiff nor defendants can have a fair trial under the law until the question is settled and the case is disposed of under the rules applicable to the contract as it actually existed. This may resolve itself into an issue of fact for the jury to decide from the evidence under appropriate instructions from the court. This, as other questions, must be left for determination by the trial judge.
What, under the circumstances of this case, constitutes legal justification for a discharge of plaintiff and what a wrongful discharge? The exceptions of defendants are not sufficient to present these questions as they seek to do. However, as the terms "legal justification", "sufficient cause", and "wrongful discharge" are essential to a proper charge in this case, it would be well for the judge presiding at the next trial to define and explain their meaning as applied to the evidence in this case.
For the reasons stated there must be a
New trial.