Goldmann, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.
Plaintiff Albert Hindle, Jr. brought an action in the Superior Court, Law Division, against defendant Morrison Steel Co. (Morrison) to recover damages resulting from a breach of his employment contract and his contractual rights under the company's retirement fund agreement. Plaintiff also sued to recover punitive and compensatory damages in a tort action based on an alleged conspiracy by Samuel Hamelsky, Max Krafchik and John Wait, officials of the company, to deprive him of money standing to his credit in the retirement fund. The jury returned a verdict in favor of plaintiff against the company for compensatory damages of $16,927.23, comprised of $6,300 for breach of the employment contract and $10,627.23 for the value of his interest in the retirement fund. A verdict of no cause for action was returned in the tort action. Morrison Steel Co. appealed and plaintiff cross-appealed from the adverse judgments.
This appeal raises two principal issues: (1) plaintiff's rights under his contract of employment, and (2) plaintiff's rights under the retirement fund agreement.
Hindle was employed by the company on November 17, 1952 as service manager at an annual salary of $5,200. No definite, fixed period of employment was expressly agreed upon at the time of the hiring. During the period of his employment plaintiff's job responsibilities varied. From May 1959, until his services were terminated, he served as plant superintendent at a salary of $9,000 a year. On February 26, 1960, he was discharged by Wait, the plant manager, who stated that he was dissatisfied with plaintiff's performance in the job.
On March 31, 1952 (prior to plaintiff's employment) the company created a retirement fund for the benefit of its employees.
Under its terms the company contributes to a trust fund an amount equivalent to 15% of the compensation paid annually to its employees. Employees do not contribute. The Irving Trust Company of New York is the trustee. The individual account of each employee is credited annually by the trustee with his share of the company's contribution.
The retirement fund agreement provides for the payment of pension benefits to an employee on retirement at age 65 or for disability, for certain payments on his credit balance if the employee quits of his own volition, and for payments if he is dismissed from service of the company through no fault of his own. The agreement also provides that if an employee is discharged for cause he shall forfeit all his rights in the fund and that money then standing to his credit shall be added proportionately to the credit balance of remaining employees.
Seven specific reasons are listed under section 19(a) of the agreement as constituting "discharge for cause." The only one pertinent to the instant case is as follows:
"(5) Failure to perform the work or services properly and reasonably assigned."
Defendant Morrison predicates its first claim of error on the denial of its motions for judgment of involuntary dismissal made at the close of plaintiff's case, (R.R. 4:42-2(b)), and at the conclusion of the trial (R.R. 4:51).
Defendant argues that plaintiff's employment was at will and subject to termination with or without cause; that since plaintiff had been discharged he had no legal claim for damages for an alleged salary loss. It contends plaintiff failed to prove that his discharge was not for just cause, and consequently he had no actionable claim for breach of contract rights under the retirement fund agreement.
Plaintiff alleges that the evidence presented jury questions as to whether his employment was on a yearly basis; that even though the ...