On appeal from the Supreme Court.
For the plaintiff-respondent, Edward R. McGlynn (Joseph Weintraub, on the brief).
For the defendant-appellant, Emanuel Shavick.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment for the plaintiff recovered in the Supreme Court Circuit of Passaic county. Seven reasons are argued in support of a reversal of that judgment. A resume of the facts is necessary for a comprehensive understanding of the case.
The demand of the plaintiff is for the sum of $8,222.30 which he claimed was due him as salary from his employer, the defendant. He alleges that he agreed to work for the defendant company, supervising the operation of its plants, for a salary of $18,000 a year, which was to have been paid at the rate of $1,000 per month, the balance of $500 monthly to be retained for his use and to be paid him semi-annually. The employment began on November 1st, 1930, and ended on July 1st, 1932. The action then is for the difference
between the sum the plaintiff says he engaged to work for and the amount he received.
The complaint credits the defendant with two items, one of $2,877.70 and the other of $500, which plaintiff treated as advances against this unpaid accumulation.
The first count is pleaded on express contract and the second is grounded on quantum meruit asserting that the reasonable value of his services was $18,000 per annum and, after payments made on account of salary and the advances mentioned above, there was a balance due and owing to the plaintiff in the amount of the demand.
The defendant, answering, filed a general denial and as a separate defense pleaded that the contract in question was an oral one; that it was not to be performed within a year, and therefore fell within the interdiction of the statute of frauds. 2 Comp. Stat., p. 2612, § 5, P5. It counter-claimed as well for the amounts of $2,877.70 and $500, charging that these sums advanced to the plaintiff were loans which he failed to return, and the defendant asks judgment for the amount of them. A reply to the answer and an answer to the counterclaim followed, admitting that the contract was oral, denying that it came within the purview of the statute of frauds, and joining issue on the counter-claim.
The record disclosed that prior to October, 1930, the plaintiff had been in the employ of the Associated Dyeing and Printing Company as manager of one of its several plants at a yearly salary of $12,000. That company suffered financial reverses, a receiver had been appointed, and it had been reorganized. The plaintiff entered into the service of the new company, the defendant in this case, and was placed in charge of all its plants as supervisor of operations. While his service in the new post started in October, 1930, the amount to be paid to him as salary was not, according to his testimony, settled until February, 1931. Many conversations between the plaintiff and the president of the defendant ...