Defendant appeals as of right from a trial court judgment finding it liable for breach of an employment contract in the amount of $4,484.70. Plaintiff has filed a cross appeal.
Negotiations concerning the terms of the employment contract were commenced in December, 1976, while plaintiff was employed by Podiatry Services, Inc. Prior to that time, Dr. Kenneth R. Lawrence was president of Podiatry Services and had hired plaintiff after he successfully completed his preceptership training. In November, 1976, Dr. Lawrence left Podiatry Services and formed defendant corporation. Terms were agreed to and on January 29, 1977, the parties executed an 18-month employment contract. The terms recited that plaintiff was to receive a yearly salary of $25,012 "plus such bonuses as shall be approved by the Board of Directors from time to time provided that if any such bonuses are approved, EMPLOYEE’S bonus shall be equal to twenty-five percent (25%) of the total bonus so declared for all employees”. Additionally, paragraph 2 of the contract provided that either party could terminate the contract at will upon 60 days’ written notice.
The employment relationship broke down within a few months and on June 27, 1977, plaintiff was terminated, effective immediately. Plaintiff recov *181 ered damages for 60 days’ salary, automobile rental and health insurance for his wrongful discharge.
Defendant has raised two issues on appeal and plaintiff has raised another issue on cross appeal. Defendant first questions whether the trial court correctly found that defendant failed to carry its burden of proof regarding plaintiff’s duty to mitigate damages.
It is well established that a plaintiff must make every reasonable effort to mitigate damages.
Edgecomb v Traverse City School Dist,
In the instant case, the trial court made the following pertinent findings of fact: that the evidence gave no indication that if plaintiff sought employment he would have obtained it within the *182 60-day period; that the contract limited plaintiff to seeking employment in an area outside of a ten-mile radius; that podiatry is a profession rather than a job; and that plaintiff required at least 60 days to find proper employment. Hence, the trial court concluded that the burden of proof on mitigation of damages had not been met by defendant.
An appellate court will set aside the findings of fact of a trial court sitting without a jury only when such findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.
Smith v Michigan State Accident Fund,
Our review of the record discloses that the trial court’s findings are not "clearly erroneous”. The reasonableness of plaintiffs decision as to whom and where he could best form a professional association was a determination to be made by the trier of fact. We are not left with a firm and definite conviction that he erred.
Defendant next questions whether the trial judge correctly found that plaintiff did not have to reimburse defendant for hospital assessments paid by defendant pursuant to the employment contract.
At issue is the following provision:
*183 "Upon the occasion of the EMPLOYEE terminating his employment with the CORPORATION either voluntarily or involuntarily, said EMPLOYEE shall reimburse the CORPORATION for any hospital assessments that have been advanced on his behalf.”
At trial, testimony was adduced which established that defendant had made monthly payments of $55 for hospital assessments beginning with plaintiffs commencement of employment in January and continuing through June for a total of $330. Defendant wanted complete reimbursement, claiming the above provision should be interpreted by "standards of the industry” rather than the plain language of "advanced” as being a future outlay. It is well settled in the law of contracts that language will be construed against the party drafting the instrument.
Bruno v Detroit Institute of Technology,
Similarly, since the contract was silent as to reimbursement of paid associational and hospital dues, that claim is also without merit.
Finally, plaintiff questions whether the trial court properly denied plaintiffs claim that he was fraudulently induced to execute the employment contract because of certain representations made concerning the payment of bonuses. We think the trial court was correct.
The elements constituting actionable fraud or misrepresentation are well settled. In
Candler v Heigho,
"The general rule is that to constitute actionable *184 fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowlédge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.”
See also
A & A Asphalt Paving Co v Pontiac Speedway,
Inc,
The initial consideration, then, is whether defendant made a material representation to plaintiff. In
Boston Piano & Music Co v Pontiac Clothing Co,
A reading of the testimony most favorable to plaintiff suggests the conclusion that Dr. Lawrence gave the impression that plaintiff would receive a salary of $25,000 plus bonuses paid at least every six months, after the corporation’s profits were reviewed every two or three months. However, under Boston Piano, supra, the fact that this apparent promise was broken did not constitute *185 fraud, nor was it evidence of fraud. The failure by defendant to make good its assurance that bonuses would be paid every six months was merely a breach of contract, which must be enforced by an action on the contract, if at all. Boston Piano, supra, 147.
Plaintiff further contends that even if the representations are found to be promises of future action, they nevertheless fall within the "bad faith” exception to the general rule that such promises are not actionable torts. Plaintiff’s contention is based on
Crowley v Langdon,
"The fraud claimed by the plaintiff is, that when the defendant made these promises to pay, he did not intend to keep them and concealed his intention from the vendors. The defendant denies that he made any such promises, but, assuming that he did, there is no evidence they were accompanied by a fraudulent intent. The nonperformance of a promise is not fraud nor is it any evidence of fraud.”
The evidence in the case sub judice mandates a finding that the defendant did not act in bad faith. Accordingly, the trial court’s finding that plaintiff did not satisfy his burden of proof by clear, satisfactory and convincing evidence was correct and sufficient to satisfy the requirement of GCR 1963, 517.1.
Affirmed.