16 Ohio App. 51 | Ohio Ct. App. | 1921
This cause conies into this court on petition in error to the municipal court of the city of Cleveland, the purpose of which is to reverse a judgment obtained by Alvin B. Jackson against The Parish & Bingham Corporation.
Prior to January 1, 1919, Jackson was employed by The Parish & Bingham Corporation as a foreman in its assembling department, and was drawing a fixed wage, which amounted to about $190 or $195 a month. In December, 1918, a written proposition of a profit-sharing plan was promulgated by the officers of The Parish & Bingham Corporation, the purpose of which was to insure permanency of employment, i. e., that the men would not quit hastily and before the expiration of the year, and in pursuance thereof a labor plan was devised by The Parish & Bingham Corporation whereby the company was to establish a basis for profit-sharing in addition to the wages, which were to be determined later, the work of the men to be graded upon a scale of one thousand; and then if they had a perfect scale they were to have thirty per cent, in addition to whatever the wage might be, which was thereafter to be deter
This proposition was promulgated in writing and handed to each of the men, and it was to go into effect January 1,1919. The men did not know what the wages were to be that were to be paid to them the first day in January. The plan adopted, exclusive of the thirty per cent., the so-called bonus, resulted in a reduction of Jackson’s salary from $195 to about $175 per month. For a long period of time, the inspections were made and credited to the men, including Jackson. This was, of course, to their credit, but it could not be drawn until the expiration of the year, and then only in case the men worked for one year. This matter proceeded along until September, 1919, when Jackson was discharged, and the corporation refused to pay him the bonus, but did pay all the wages that were due up to that time, whereupon he brought his suit in the nature of damages for wrongful discharge and for the bonus that he would be entitled to under the terms of the plan promulgated by The P'arish-Bingham Corporation.
It is claimed in argument by The Parish-Bingham Corporation that it had the right to discharge Jackson, and that it discharged him for good cause, but
It is argued that this bonus was a mere gratuity, and that there was no consideration which would compel The Parish-Bingham Corporation to pay the bonus, that it was a mere promise of a gift, and we are cited to the case of Black v. The W. S. Tyler Co., 12 Ohio App., 27, a case from this county, in which the syllabus reads:
‘ ‘ The mere fact that a corporation has decided as a matter of policy to allow its employes to share in the profits does not create a contract obligating it to pay the same, when the offer of the company did not induce the employe to do or forego what he would not have done or foregone but for such offer.”
We are quite in accord with the doctrine laid down in the Black v. Tyler Co. case, supra, but we think it is easily distinguishable from the case at bar. There the wages of the workmen were not in the least affected. It was simply a promise upon the part of the W. S. Tyler Company to pay them in excess of their wages a dividend earned by the company, and it nowhere assumed the form of a contract.
The instant case is more in accord with the doctrine laid down in the case of Zwolanek v. Baker Mfg. Co., 150 Wis., 517, reported in 44 L. R. A. (N. S.), 1214; and almost all the questions that arise
In the instant ease it will he noted that a proposition was made in December that the wages for the next year would he based upon a profit-sharing plan, and that the amount of bonus was really a method of arriving at the wages. The only object of having it called a bonus and working the plan out in that way was for the purpose of retaining the funds, so as to insure the workmen staying during the year, and to assure more efficient work on the part of the workmen.
Now this proposition made by The Parish & Bingham Corporation to its workmen in the plan outlined, called the profit-sharing plan, was an offer, to start the beginning of the new year, and any person who remained or came into the employ of The Parish & Bingham Corporation at the beginning of the new year, or subsequent thereto, with the knowledge of this plan, on going to work accepted that proposition and made it a valid and binding contract upon the two parties, and it was a contract based upon a consideration.
Quoting from Zwolanek v. Baker Mfg. Company, supra, the second and third propositions of the syllabus :
“But a by-law of a manufacturing corporation providing that any person who should have been in the regular employ of the company for a certain time should thereupon begin to share in the surplus earnings of the company, provided he did not quit or was not discharged prior to January 1st of any year, was, when communicated to the employees, an offer of a reward for constant and continuous service and, when accepted by an employee by substan
“It was not essential in such a case that the employee should have informed the company that he relied upon the offer in continuing his work.”
You will notice that the instant case is still stronger than the Zwolanek case, because here the proposition was made to apply in the future, to-wit, from January 1, 1919, and all employes who were then working, at least, among whom was the plaintiff, by continuing in the employ accepted this proposition and it became a valid and binding contract.
Now it is claimed that this contract cannot be enforced because it is a verbal contract and one which could not be performed within a year. The Zwolanek case disposed of that proposition likewise. Proposition 4 of the syllabus is as follows:
“The statute of frauds relating to contracts not to be performed within one year has no application to such a case, because when the contract comes into existence the only obligation is that of the company to pay what is due under it.”
We must not get confused between an executed contract and an executory contract. If in December this contract had been accepted by the plaintiff Jackson, and it had then remained executory, whether he could have sued and obtained damages or not is immaterial, because having gone to work under the contract, even though unenforceable under the statute of frauds, after having performed work under the contract, I think a diligent search of the authorities will fail to show a case where a person has been denied the right to recover for his labor. In fact, there are a great many cases which
We have been cited to several authorities, but we do not think they are in point, or at least they do not change our views in regard to the matter. This Zwolanek case has been, as I have said, likewise reported in 44 L. R. A. (N. S.), and the notes to this authority throw some light upon the proposition, but they do not add materially to the weight of authority of the 150th Wisconsin, supra.
Now, the right to recover is based upon the wrongful discharge by the defendant and upon the wrongful conduct of the defendant. Is the plaintiff deprived of his right to these bonuses if this view is adopted? Now it will be remembered, from the record in this case, that the basis of computation for the bonus was fixed upon a thousand points, and then apparently this could be reduced by a series of deductions for inefficiency in the nature, perhaps, of penalties or fines for the workman, in order to keep his production up to the maximum. Now, if this survey and inspection was not made by the company, who is to blame for it? Should the workman
We have gone through this record, and while there may be minor errors, yet in view of the entire record such errors are not so prejudicial as would warrant a reversal of this case, and the judgment of the court below will be affirmed.
As to the case of H. A. Belk v. The Parish & Bingham Corporation, what has been said in this case will also necessarily apply to that case, and the judgment in the Belk case will likewise be affirmed.
Judgment affirmed.