*1 Department Two. March 1963.] 36086. [No. Appellant, Company, Edwards, Jack v. Morrison-Knudsen * Respondent. Inc., *Reported in 379 P. 735.
Sweeney (David counsel), Hunter, & Hunter C. appellant. *2 Leedy, by re- for
Allen, DeGarmo, DeGarmo & Gerald spondent. judg- appeals an J. Plaintiff from adverse Hamilton, lodging salary recover in his action to
ment entered alleged employ- arising an from the breach allowances ment contract. following August, received the letter
In defendant: from Company, Inc.
“Morrison-Knudsen Engineers Contractors “Principal Office Broadway, Boise, Idaho reply to “Address “M-K Contract 1787 Pouch AF 33-600-29717 Anchorage, Alaska “August 22, 1955 “Mr. Jack Edwards 6704 Weedin
Place Washington
Seattle,
“Dear Sir: project very large starting and extensive “We you Territory would be wonder if Alaska and we Super- taking position of Structural Steel interested in intendent. commencing your about need services will be “We your own foreman September You will select 15, 1955. possible many retain an effi- still men as local hire as bring key organization. few men from the You can cient although do have several here who we as foremen States Company. These men have previously worked have subject your approval. yet and will be hired not been per $1,250.00 month. be Room will “Your job-sites, you on where will furnished will be board your Transportation time. will be spending the bulk Anchorage, Alaska and to and from and from furnished job-sites. sibly longer. years pos- project This will last about two hearing you appreciate earliest at the “We would possible date. truly “Very yours, Company, Inc. “Morrison-Knudson [s] “Don “Don W. Hitchcock W. Hitchcock, Supt. “General Construction “Contract you.” Mr. “P.S. ‘Butch’ Perron has recommended By plaintiff unequivocally accepted mail, return proffered employment defendant. plaintiff reported Anchorage, 4, 1955,
On October Alaska, and defendant, continued on 10, 1956, No. until November when he terminated, cause, without the termination notice stating following “Laid Off —Reduction in Force.” spring, employed defendant another as structural steel *3 superintendent August 17, 1957, until when the steel work completed. was by recovery (a)
Plaintiff, three of action, causes seeks of salary August (b) 10, 1956, November to 17, 1957; lodging board and allowance between 4, 1955, October and August (c) unpaid salary (De- and 1957; one month’s 1955) incapacitated cember, when he was to due on-the- job injuries. premises upon Plaintiff his claims his con- (1) employment tentions that: for was a fixed term— (2) duration of the on steel work contract No. spent actions, but for defendant’s he would have the “bulk” (3) job of practice sites; his time on and pre- custom and salary payment periods of incapacity. scribes for short of (1) Defendant, on the other hand, contends: There was (2) no fixed term employ- contract; if there existed an ment contract, such is unenforceable because of indefinite- (3) plaintiff’s salary ness; and endorsement on checks sub- sequent December, 1955, constituted an accord and sat- isfaction. found, inter
The trial court alia: Plaintiff’s unconditional employment by acceptance offered defendant’s let- August plaintiff’s termination; termination 22, 1955; ter of substantially superintendents due to of all construction regarding practice down; winter shut custom and in Alaska shut between November and winter construction downs employment April; resume his readiness employment of another and defendant; defendant’s August on on contract No. 1787 conclusion of steel work management of his own time where- 17,1957; during employment is, whether he was abouts his —that injury hospitalization job sites; or was not on acceptance December, 1955, and endorsement salary subsequent checks. findings, concluded: trial court From such (Plaintiff’s (1) August 22, 1955, Ex- “That the letter employment 1) Plaintiff an offer hibit did constitute although part it uncondi- was on the of Defendant tionally accepted by was, it a con- Plaintiff, as employment of Contract 1787 so as for the life tract to right law of an em- the common cut off and terminate ployer and fire to hire at will.” (2) had been “That even if Ex- Plaintiff’s Plaintiff Defendant created between acceptance thereof, unconditional and the Plaintiff’s hibit possible lia- from all Plaintiff the Defendant the bility released during 2, 1955 from December by signing January of the endorsement to the following by Defendant to Plaintiff his issued checks injury 30, 1955.” on November against (3) no claim Defendant under “That Plaintiff has Findings covered of Fact of this case as facts any action as the causes of asserted herein Complaint there should be entered herein Amended Judgment of the Plaintiff’s Amended Com- Dismissal *4 every plaint forth action set therein with and of each prejudice to be taxed in favor of the De- costs by provided against Plaintiff as law.” the fendant assigns 1 and error to conclusions of law Nos.
Plaintiff findings relating to termina- to the trial court’s superintendents, and an Alaskan custom tion other April ceasing between November construction work year; the trial court to cer- refusal of enter of each findings; plaintiff’s proposed and to the admission tain of evidence. of certain agree law, with the trial court’s conclusion of based
We correspondence fact, that the between the parties gave employment. the rise to a contract of question involved, as concerns basic insofar salary following for is whether claim November employment is, contract for a definite term —that 1787— for duration of steel work on contract No. simply employment an term or for indefinite at —terminable will. terminology
Plaintiff contends of defendant’s offer, character, nature, taken with the and circumstances employment, including salary scale, distance lodging living factors, conditions, travel and allowances, supervisory responsibility, and the su- economic factors of personnel pervisory legal compels turnover, conclu- employment by parties, sion that was intended both particularly accepted plaintiff, being as for project, completion term of the or until of the steel work. employment Defendant, on the other hand, asserts the arrangement was too indefinite as to duration to other be employment an than terminable at will. pertinent applicable rule, to the circumstances presented, appear succinctly would
here summarized p. Jur., § in 35 Am. Master Servant follows: employment express “A contract its terms day presents, for a time or is definite to last until a definite problem concerning course, no its duration and termi- employer implied right discharge nation. The has the employee employment cause, but otherwise the can- right during not be terminated of the term of its existence expressed . the contract. . . expressed, “Where no definite term of governing there is no rule inflexible the duration of the relationship. ment ticular case. In employ- cases, the duration of the par- must be determined circumstances in each dependent upon It understanding parties, intent of the to be ascertained from their written negotiations, usages oral of business, the situation *5 598 employment, object parties, of the nature the and and all the circumstances surrounding Re- transaction. the stipula- any express gardless, of therefore, the of absence dispute employment, to regarding a term of
tion employment settled nature is to be of of a contract duration contract, the the terms of with reference to agreed performed, and to be were of the services which attending the intention evidence which circumstances parties, the contract is true and this is where of case, the writing, in either oral; it is well as where parties, the situation takes into consideration court and the they objects has In case the contract had in view. general or to a custom business reference made with been agree- part usage a enters into becomes which not, course, indefinite as to its ment, usage fixes the term of if custom duration employment.” such Co., Furniture 46 v. Bros. Wn. See, also, Lasser Grunbaum (2d) (2d) (2d) Boen, 45 832; Rohda v. Wn. 408, 281 P. (b), Agency (2d) p. § (2d) 442 Restatement, 276 P. § S., 706, 713; 56 C. J. Master Servant 339; A. L. R. (b),p. 75. Co., Bros. Furniture v. held in Lasser Grunbaum
We (50 subsequent appeal supra, case same on the (2d) 259), question (2d) of fact 191, 310 Wn. determining em presented a contract of whether was particular case, for a fixed term or ployment, in a duration. indefinite presented in the instant case and circumstances
The facts conflicting upon the in- inferences themselves lend employment. The court did duration tended finding issue. In this an ultimate make not proposed party court, neither the trial fairness finding. court’s oral decision does
Resort pattern the trial court de clarify factual findings of fact as entered phase the case. this cided the trial court’s conclusion support contradict nor neither finding of ultimate fact respect. The function in this lawof power court. The of this exclusively vested appellate only. Stringfellow Stringfellow, court is (2d) 353 P. 671. Accordingly, upon action, the case is cause entry remanded to the trial court fact determining the intended duration of the con *6 question. tract in If the finds, fact, trial court as a parties plaintiff’s employment intended to continue until completion upon of the 1787, steel work then No. judgment would be entitled to for those would, he under found, months the facts as otherwise have employed upon project by been defendant, between August 10, 1956, and 17, 1957, November less such of his earnings may, intermediate as evidence, under the be found mitigation thereof. If the trial court determines, as a employment fact, the to have been for an indefinite term, judgment upon then as entered this cause of action would stand.
We turn next to second cause of action. Plain- tiff seeks reimbursement, before and after 10, November 1956, lodging (measured for the value of board and on a per basis) diem to be furnished to him under the contract employment job at such times as he was sites. In finding of 6, fact No. the trial court found as follows: practice “That it was the custom and in the northern part Territory of the Alaska, where the work of Contract performed, 1787 was to be well known to both Plaintiff August and Defendant on 22, 1955, and at all times mate- major rial hereto, for all outside construction activities to year, cease about 1, November of each and not to be re- April sumed until on or following year about 1 of the due severity to the During period winter weather. employment by of Plaintiff’s Defendant, his movements were as shown Plaintiff’s pres- Exhibit 13 insofar as his Anchorage ence in concerned. job or at one or more sites was During period October 1955, approximately April presence 1, 1956, the of Plaintiff in Anchorage was dictated either the winter construction season mentioned or the duties of Plaintiff as Structural Superintendent upon Steel by any Contract 1787 and not demands or restrictions of Defendant and thereafter during employment remainder of his the Plain- movements
tiff his and determined his own was own boss periods During performance in the time accounts of his work. expense numerous the Plaintiff submitted to Defendant 14 and 16 contained in Plaintiff’s Exhibits and for he and 22 Defendant’s reimbursed Exhibits thereby.” paid by Defendant shown assigns Plaintiff error to the first sentence bearing upon rejection fact No. evidence frequent presence possible in Anchor- cause of assigns age prior no 10, 1956. He error to to November 3 insofar as such of law No. court’s conclusion of action. to the second cause relates plain- following undisputed 10, 1956, that, November It is any job consider, as If we tiff sites. was not damage proper con- under element of lodging ac- us, here the value board tract before immediately job plaintiff upon con- sites, we corded contract, Under the thereof. fronted the measure *7 spend predicted plaintiff the “bulk” of his it is would unchallenged portion job Under the time sites. apparent variables, finding such as 6, it is of No. plaintiff’s discretion, neces- and duties, weather, official any sarily Plaintiff of such time. calculation enter into by multiplying purported the number loss calculated his Sundays, by per He amount. days, a fixed diem of less concerning thereof. the reasonableness offered no evidence proper measure calculation deem do not We damages circumstances. under of such supports 6, No. and amply evidence amply undisputed facts, finding, together with such plaintiff’s second as to supports conclusion court’s assignments merit in find no action. of We cause they thereto. relate as payment of one action seeks of third cause
Plaintiff’s During period, salary 1955. this December, for month’s injuries. on-the-job Upon incapacitated due to plaintiff was part, found, court case, the trial of facet follows:
601 practice and That the custom “. . . it was persons the status industry compensate construction Plaintiff, dur- Superintendent, of Structural Steel injuries recovery ing hospitalization period following employment. That in the course of sustained January on Defendant for the Plaintiff’s return to work salary period at the the first 3, 1956,and at the end of salary termination period end each thereafter from De- checks received the Plaintiff place above a clause . . . bore fendant endorsement as follows: “ undersigned ac- ‘By check, the of this endorsement knowledges and demands payment claims of all his in full against Company, Inc. account of on Morrison-Knudsen including performed on stated to and labor the face check.’ of this by Plaintiff below and each such said was endorsed checks
wording.” Upon trial court fact, the the basis of such plaintiff had released defend- concluded as a matter of law liability question. this conclu- To ant for the assigned sion, error. has disagree the trial court.
We constrained (2d) Meyer 818, 823, 226 P. Strom, In (2d) 218, we said: on contract. Se- “An is founded accord satisfaction Dependable Syndicate Stores, attle Investors v. West York Ins. v. New 956;
Wash. Graham Life Restatement, Con- Co., 182 Wash. Satisfaction, § 1 Am. Jur. Accord 785, 417; tracts § there and satisfaction Therefore, 4. create an accord meeting parties upon the sub- of minds of the must be ject part to make such an on the an intention both agreement. ...” *8 compensa- subject plaintiff’s claim is for matter of resulting during incapacity from on-the- a
tion practice job injuries. found It arises out of custom industry. subject particular matter to exist in the claims “on account labor relates to of the endorsement acknowledge payment purport performed.” It does not arising otherwise. for claims plaintiff thereby
We hold did not release his claim for salary payment December, question. Judg- in accordingly ment should enter due, for the amount less payments plaintiff such time loss otherwise received. plaintiff’s remaining assignments We find no merit of error.
The case is remanded to the trial court with directions proceed in accordance herewith. Plaintiff shall recover appeal. costs on J.,C. JJ., concur.
Ott, Donworth, Hunter, (concurring part, dissenting part) J. Finley, —I agree majority phrase, that the “on account of performed,” appearing labor in an endorsement on the paychecks signed plaintiff, back and cashed strictly should be construed; furthermore, that the en- signed by clearly dorsement an accord precluding and satisfaction his claim for while in- capacitated on-the-job injuries. Therefore, on the basis respecting of the trial court the custom and practice industry concerning compensation in the for time on-the-job injuries, from loss I concur in the conclusion majority judgment plain- that the of the trial court on agree third Furthermore, tiff’s cause should be I reversed.. majority judgment with the in affirmance of the denying dismissing trial court second cause. agree majority’s However, I cannot with the review disposition first cause. appellate process, now,
For some time in our cases tried jury differently to a have handled been somewhat judge. those tried court, ie., reference With distinguishing, applied to the latter cases rule has been technically findings least, at between of fact and conclu- dichotomy sions of law. This as to of fact and (implemented requirement conclusions of law (a) findings court make enter of fact and (b) law) necessary conclusions of has as a been described justified ground one, on the that the court can-
603 evidentiary required to search not not or should be weigh required to stern, then be to and record from stem evidentiary pattern describe and to factual or evaluate appellate entering, court by making effect, the result evaluating resoundingly that findings fact. have said We findings entering ex- making fact, evidence, have further clusively prerogative court. We discarding by appellate attempted function to limit by findings trial court will fact entered that the rule preponder- by supported accepted a clear verities if as be degree supported in lesser evidence, or even if ance of the have Instead, we preponderance evidence. findings fact applied a rule that enunciated supported accepted verities if the trial court are to be abstractly, these blush, and At first substantial evidence. may procedure clear, appellate seem rule of variants of our curiously enough, logical convincing. it is However, objective, crystal subjective, or other than clear what less appropriate are available of measurement standards satisfy requisite quantum of evidence to determine the analysis, Upon the record close the three rule variants. applications rule of of our relative to concrete seemingly logical procedure and not clear, so so judge’s convincing. written have held We transcriptions stenographic opinions memorandum clarify give may opinions and to to, resorted oral judg- findings meaning otherwise, fact which our (1962), might Rutter 59 Wn. clear. Rutter v. ment, not be (1959), Hodges (2d) (2d) 54 v. Gronvold 862; P. 781, 370 (1959), (2d) Thompson (2d) v. 857; P. Guerin 478, 341 Wn. (2d) (2d) Holden Miller Lbr. Co. v. 515, 36; 335 P. 53 Wn. (2d) (2d) (1954), v. T. E. 237, 786; 273 P. Wentz 45 Wn. (2d) (2d) (1954), Connolly, 127, 485; P. 45 273 Inc. Wn. (2d) (2d) (1953), 129, P. 42 253 Wn. Bowman v. Webster (2d) (1952), Payne 746, 246 P. 40 Wn. v. Vinecore 934; (2d) (1951), (2d) 55, 38 227 Mertens Wn. 448; Mertens v. (2d) occasion that have held on 724. P. We judge, may and entered fact, described 604 (Fain (1960),
be treated as conclusions of law v. Nelson (2d) (2d) (1957), 57 217, Wn. P. 302; 356 Kane Klos v. (2d) Payne (2d) (1955), P. 672; Wn. Grove v. (2d) (2d) McClendon Callahan (1955), (2d) 46 Wn. 323; Miller Lbr. Co. supra; Wygal (1952), Holden, *10 v. 41 Kilwein Wn. 893), (2d) conversely (Hoke 281, v. Stevens- (1962), (2d) (2d) Norton, Inc. 60 775, Wn. P. 375 Coolidge Cy. (1902), 391). v. Pierce Pac. 28 Wash. foregoing the
With in it mind, me that the seems to disposition majority opinion appellant’s first cause suggests appellate some reconsideration this rule dichot- omy relative to law, of fact and conclusions applying relying well as reconsideration of the cases upon dichotomy this terms of case review disposition. language
Reference will now be made to some of majority opinion disposition of the relative to analysis language cause, and first some and the of this reasoning attempted. majority opin- involved will be (1955), ion cites Lasser v. Grunbaum Bros. Co. Furniture proposition question it of fact is whether a contract Thereupon, fixed is for a or an indefinite term. in the first following paragraph, majority opinion sentence reads: presented “The facts the instant circumstances conflicting upon case lend in- themselves inferences employment.”
tended duration of emphasizes This circumstances; sentence no dis- facts suggested tinction is and no differentiation made as be- is facts and tween circumstances. then Albeit the sentence conflicting ap- refers to ones—based or “inferences”— arising parently previously facts and cir- mentioned It cumstances. is not clear whether these inferences interpretations (1) (2) circumstances, facts (3) (4) judgments, psychological hunches, or value other (5) something closely legal reactions, emotive or akin to something or different, more is, conclusions; that at least evidentiary simple, facts. unvarnished less, from so-called conflicting to “the related are said to be inferences employment.” This, seems to it intended duration namely, injects But it is not factor, intent. another me, by subjective or ob- determined intent clear whether jective a state of mind from intent is standards, whether psychology, psychiatry standpoint or or of medical evidentiary legal concept facts in related to or conclusion bearing thought processes having upon the record, some succeeding sentence the defendant. The or paragraph particular that the trial court did states of that this issue. make an ultimate With (adjective nature) words, modifier collocation picture. suggests injected factor in the This another facts, facts and ultimate differentiation between with- some explanation, providing elaboration, reader with an out suggested justification The next distinction. suc- *11 ceeding paragraph states, clarify trial court’s oral decision does not “Resort to pattern factual which the trial court decided this
phase of the case.” any majority help thus decline
The from the trial court’s proposition stick to the decision, but oral trial labeling decision, without a court’s decision conclusion supported pat- actual law, should be an or a factual majority sentence, next In the state: tern. findings support fact as neither entered nor
“The con- respect.” court’s conclusion of law in tradict opening getting ques- Pandora’s box and into such Without are facts? what are as: what conclusions? tions what are and are of fact? what conclusions of law?—1 the majority above-quoted statement is of course ortho- only general again reasonably nature and dox, but con- Purpose Law, (1958); Natural 1Fuller: Human 3 Natural L. F. 68 Value, Nagel: (1958); On the Fusion Fact 3 Natural L. F. 77 Fact, (1942); Law and L. The Law 55 Harv. Rev. 1303 Isaacs: Morris: Facts, (1922). 22 Colum. L. Rev. vincing. Citing Stringfellow Stringfellow (56 (1960), (2d) 671), para- graph concludes: finding exclusively “The function of ultimate fact power vested in ap- the trial court. of this court is
pellate only.” majority opinion then remands the case entry court for the a relative to and de- terminative of the intended duration of the plaintiff-contractor. point It seems me the has been reached that consid- given appeal eration should be to revision of the on rules end that our courts, review of i.e., cases tried to the judges, will be handled in the manner same jury. cases tried to a evolved, The rules and as annotated sufficiently meaning appli- cases, in our unclear in appellate cation that I have serious doubts if even con- venience is facilitated. appellate saving
toAs convenience and assistance in unnecessarily spent reading lengthy time records in appealed, simple hundreds of cases rule ade- will serve namely, quately: argu- that counsel, in briefs required clearly ment, pages to indicate reference to parts (evidentiary and lines those statement facts record) support parties the contentions of the on appeal. orderly appellate procedure
An and more accurate description likely and informative of it would be more by change simple provision, operandi rule, to a or modus comparable applicable jury. to that tried Thus, cases to a decision-making judgment function the final en- *12 by judge by supported a trial affirmed tered would be if clearly evidence; or, the if evidence is in conflict substantial way, reasonably the another if is or, described evidence rationally convincing, judg- believable and the result or by judge the trial reached does shock the con- ment judges court. of the of the science judge case, I think that the trial the in In instant his (a) clearly decision-making that has indicated function evidentiary pattern before of the from his evaluation judgment, (b) the contract him, and his The a definite term. rather than an indefinite was one for offering employment in only letter reference in the time a reads: sentence which to the Alaska years possibly project “This will last about two longer.” longer,” phrase, years possibly cer- The “about two tainly general specific a reference to time than a rather language, reference, is, is a or such as it to duration. This generally project, speaking, time, its or duration. to the employment. reference is not to employment, language coupled letter of supports record, de- in the other evidence substantial judge that the term of em- cision of the trial ployment was indefinite.
Realistically, it me court evaluated seems to the trial has legal the evidence, and therefrom has decided parties result to be attributed to conduct of surrounding up the circumstances their conduct added project, contract, not for duration of the construction but done the defendant. In one terminable as was legal is a conclusion of law sense this conclusion Remanding reached court. will not trial case change legal the mind as to the effect to court relationships parties. to the actions attributed Realistically, suggestion make or that the court enter a of fact as “intended duration of likely produce statement contract” most will some labeled “finding support fact,” in turn be said to will legal previously the trial court conclusion reached controversy. aspect disposing On this of this facet appellant, appeal I affirm the court. would Since only part, prevailed and not matter, has I view substantially, leave each side to its costs. too I would own