300 A.2d 45 | Conn. Super. Ct. | 1972
This is an appeal from a judgment rendered for the defendant arising out of an alleged contractual relationship of the parties.
The court's finding of facts may be summarized as follows: The defendant, a foreign corporation, was primarily engaged in the business of providing computer systems for large companies and was qualified to do business in the state of Connecticut. The plaintiff was also a foreign corporation qualified to do business in the state of Connecticut. The defendant also acted as computer consultants through its branch known as "executive search." As a consultant, the defendant would be called upon to develop a computer system for a company, to define its objectives, and to design the system. As a by-product, the defendant would help find people to man the computers in an operations capacity, program the computers, design the system, or manage the facility. Initially, the defendant's computer division offered to provide the plaintiff with a standard computer system. At the plaintiff's special request, the defendant procured an individual as senior systems analyst programmer with the plaintiff. The defendant then was specifically asked by the plaintiff to find an attorney to be employed by the plaintiff. The defendant procured Attorney Robert C. Roxby, who was later interviewed and hired by the plaintiff on September 3, 1969. The *546 plaintiff paid the defendant $3402 as a fee for procuring the employment of Robert C. Roxby. He remained in the employ of the plaintiff from September 3, 1969, until October 31, 1969, a period of about eight weeks. The defendant never collected any fee from a person for whom it secured employment. It never solicited the public at large or advertised for or concerning replacements of individuals in employment. At the time of the employment of Attorney Roxby, the defendant agreed to refund 100 percent of the fee paid by the plaintiff in the event the attorney terminated his employment within thirty days. On November 19, 1969, the defendant, by way of compromise, made an offer of settlement to the plaintiff of a 50 percent rebate of the fee paid in connection with the Roxby employment in the form of a credit toward future placements. The offer was never accepted by the plaintiff. The defendant has never obtained a license from the commissioner of labor authorizing it to carry on an employment agency business, nor has it filed with him a fee schedule relative to commissions for procuring employment or employees. The plaintiff has demanded from the defendant the return of the $3402 fee, but the defendant has never returned any portion thereof to the plaintiff.
The plaintiff brought this action in three counts. The first count demands the return of the fee of $3402 because the defendant was not licensed to do business as an employment agency in the state of Connecticut. The second count demands the refund which is required to be paid by a licensed employment agency under §
The basic question to be determined is to what extent and in what way must a "person" be engaged in the practice of "procuring ... work ... or help" for others in order to hold that he is in that "business" and thus must obtain a license in order legally to do his business.
An employment agency statute was first enacted in 1901; Public Acts 1901, c. 100; Rev. 1902, c. 259; but none of the subsequent amendments and changes have ever been interpreted by an appellate court. Hence, this issue is one of first impression, and we find it necessary to look to the law of sister jurisdictions for guidance on the subject.
In Heyman v. Howell, 133 N.Y.S.2d 19 (Sp. Sess.), the court was called upon to decide whether a co-partnership *548 which described itself as "business engineers" or "efficiency experts" became for legal purposes an "employment agency" by virtue of the fact that "[t]hey also attempt to recruit `executives' to fill positions in their clients' organizations." The New York court held that the copartnership was not an employment agency and thus did not need a license to carry on its activities. The court relied on four major factors: (1) No fee was paid by the new employee, directly or indirectly. (2) The main business of the copartnership was efficiency advice, and securing employees was only incidental. (3) The defendant did not advertise or solicit the public at large. (4) The primary purpose of the statute in question was to regulate employment agencies for the protection of the applicant for work against many possible abuses.
In National Staffing Consultants, Inc. v. Districtof Columbia,
Another case, arising under Minnesota law and favorably citing Heyman v. Howell, supra, and NationalStaffing Consultants, Inc. v. District ofColumbia, supra, is Telex Corporation v. Balch,
The relevant Minnesota statute defines an employment agency as "any person, firm, corporation or association ... engaged for hire or compensation in the business of furnishing persons seeking employment or changing employment, with information or other service ... or furnishing any other person, firm, corporation, or association who may be seeking to employ or may be in the market for help of any kind, with information enabling ... [it] to procure such help." Minn. Stat. Ann. §
In deciding that Balch was not operating an employment agency, the court relied on these factors: (1) The finding of the trial court that Balch was not "in the business" of an employment agency was not disturbed since Balch was basically a management consultant and only occasionally recruited executive *550 personnel. (2) The statute in question was designed to protect individual applicants from fraudulent and incompetent practices and not from transactions such as that between Balch and Telex.
In the case before us, the plaintiff's fourteen assignments of error relate either to the trial court's failure to find certain facts as set forth in paragraphs appearing in the plaintiff's draft finding or to correcting, striking or adding to the court's findings. The plaintiff has filed with this court a certified copy of the entire transcript of the court hearing. The assignments of error may be reduced to the single question of whether the conclusion of the court, based on the subordinate facts found, may be legally or logically drawn from those facts. See Automobile Ins. Co. v. Conlon,
A finding is to be favorably construed in support of the judgment; Cunningham Lumber Co. v. Mayo,
The trial court has found the following controlling facts which will not be disturbed. (1) No fee was paid to the defendant by the employee. (2) The defendant did not solicit the public at large for business. (3) The procuring of an employee is incidental to the main service provided to the client. (4) The policy behind §§
From the rationale of Heyman v. Howell, supra,National Staffing Consultants, Inc. v. District ofColumbia, supra, and Telex Corporation v. Balch,
supra, and the finding of the trial court, it is clear that the definition of an "employment agency" in §
The judgment for the defendant on the first count will not be disturbed.
The plaintiff hired Attorney Roxby on September 3, 1969. The plaintiff paid the $3402 to the defendant as a fee, and subsequently, on October 31, 1969, Roxby left the employ of the plaintiff.
The plaintiff introduced a letter from the defendant dated November 19, 1969, in which the defendant, by way of compromise, made an offer of settlement to the plaintiff of a 50 percent rebate of the fee paid by the plaintiff in connection with the employment of Roxby in the form of a credit toward future placements. The plaintiff claims to have accepted this offer orally.
It is elementary that to create a contract there must be an unequivocal acceptance of an offer. In the case of a bilateral contract, the acceptance of the offer need not be express but may be shown by any words are acts which indicate the offeree's assent to the proposed bargain. W. G. Maltby, Inc. v.Associated Realty Co.,
Here, the trial court found that the letter, dated after the contract was fully executed by the parties, was merely an offer of agreement unsupported by consideration. The court further found that the offer of compromise was never accepted by the plaintiff.
For the reasons set forth, we must uphold the finding of the trial court.
There is no error.
In this opinion MIGNONE and O'BRIEN, JS., concurred.