This appeal is here upon a question which asks whether or not the plaintiff-appellee, Hopkins, was entitled to a bonus from defendant-appellant, Day’s Stores, Inc., for the months of May, June and July of 1970, and if he was — how much.
The trial court granted judgment in the sum of $3,908.04 to appellee, which amounted to an award of a bonus (after allowing a set-off for undisputed deductions) for the months commencing in May of 1968 and running through July of 1970. The amount was arrived at by accepting the appellant’s
We will hold that the court was in error in awarding the $1,500 bonus for May, June and July of 1970.
Appellant defines the issues as follows:
“1. Was there an enforceable promise in the contract of employment between appellee and appellant which would allow appellee to recover a bonus?
“2. If there was an enforceable promise to pay appellee a bonus, how was the bonus to be determined and in what amount?”
Since we find there was no enforceable bonus contract, it will not be necessary to address the second issue.
The only agreement touching upon the payment of a bonus to Hopkins by his employer, Day’s Stores, Inc., is contained in these following minutes of the Board of Directors. The minutes of the Board for its meeting held on May 1, 1968, provide:
“ . . . The President’s compensation was fixed at $1,000.00 per month plus a possible bonus of 0% to 10% to be determined by the Directors at the next annual meeting. The President’s bonus for 1967 through and including February, March and April of 1968 was fixed at $8,400.00, $3,500.00 of which has been paid, with instruction that the remaining $4,900.00 be paid immediately. Future bonus evaluations shall be from May 1st through the following April SOth. Bonus evaluations shall be based on profits, merchandising, personnel training, store housekeeping, window displays, and general over-all management. . . . ” [Emphasis supplied]
The minutes of the Board of Directors for its meeting held on May 27, 1969, provide:
“The salary of President Jack Hopkins was established at $1,100.00 per month, together with a bonus to be fixed at a later date. Bonus for the year closed was fixed in the amount of $5,500.00, payable immediately. . . . ” [Emphasis supplied]
According to the minutes of May 1, 1968, the policy of the directors was that the future bonus evaluations would be at the discretion of the directors on a May-through-April yearly basis. There is no indication of any change in this policy at any time relevant herein. The May 27, 1969, minutes clearly provided that a bonus would be fixed for the year May, 1969, through April, 1970, at a later time, and there was no mention made in any minutes of a bonus for any time, in any amount, for work performed after April of 1970.
Appellee Hopkins continued his employment through the months of May, June and July of 1970. On July 31, 1970, the board voted to set appellee’s final bonus at $3,300. Appellee refused it and sued for a bonus of $8,000 for May 1, 1969 through April 30, 1970, and $4,666 for the months of May, June and July, 1970.
Notwithstanding these asking-figures and the court’s relatively-modest award, we must assume that the appellee was satisfied with the court’s action and seeks here only to defend the $1,500 granted by the court for the months of May, June and July of 1970 because the appellee has not otherwise complained of the court’s award in any respect whatsoever.
There is no language in the Board of Directors’ minutes which would indicate
Courts from other jurisdictions have held that contracts which provide only for the possibility of a bonus, and leave the payment of a bonus totally in the discretion of the employer are not enforceable by the employee. Moscow v. National Lock Company,
Since there was no agreement for a bonus for the three months in question, the court was in error in awarding a $1,500.00 bonus to Mr. Hopkins for May, June and July of 1970.
The judgment will be reversed in part and affirmed in part, with the District Court ordered to enter judgment for appel-lee in the reduced amount of $2,408.04.
Notes
. There is an unimportant dispute of fact concerning the time-frame which the $3,300 was intended to cover. In the letter advising appel-lee of the bonus, it was said to cover the period commencing May 1, 1969 through April, 1970. In discovery, there was indication that the directors intended this bonus would cover the time-period commencing May, 1969 through July of 1970. But it makes no difference in view of our holding that, in any case, the appel-lee had no valid and binding contract for a fixed bonus which he could enforce against his company in any amount over any time-period.