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KREUZBURG v. COMPUTER SCIS. CORP.

April 16, 1987

Steven D. Kreuzburg, Plaintiff,
v.
Computer Sciences Corp., Commercial Services Division, Defendant



The opinion of the court was delivered by: BARRY

 The law has always been reluctant to enforce oral promises because so often what the promisee hears differs from the intent of the promisor. The Statute of Frauds, codified in New Jersey at N.J.S.A. 25:1-5, bars enforcement of certain promises unless they are in writing. Moreover, even in cases not controlled by the Statute of Frauds, the courts of New Jersey have enforced oral contracts only when there is clear and convincing evidence of the specific promise made and that promise encompassed all of the terms necessary to its enforcement. Woolley v. Hoffman-La Roche, Inc., 99 N.J. 284, 293, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985); Savarese v. Pyrene Manufacturing Co., 9 N.J. 595, 601, 89 A.2d 237 (1952).

 Plaintiff Steven D. Kreuzburg brings this action alleging that he is owed between $ 116,537.14 and $ 210,012.00 *fn1" in unpaid commissions by defendant Computer Sciences Corp., Commercial Services Division ("CSC"), where plaintiff was employed as a Marketing Representative. The service or product generally sold by the CSC division and upon which plaintiff's commissions were normally based was essentially computer time sharing. PSO para. 5. Plaintiff began working for CSC in October, 1982 and, at the times relevant to this complaint, was paid both a fixed salary and commission. PSO paras. 1, 3. During this time period, commissions were generally paid to employees, including plaintiff, as set forth in a 1984 Fiscal Year Compensation Plan ("ICP") to which plaintiff agreed on May 31, 1983. PSO para. 4 and Exhibit 4 to Defendant's Appendix.

 On June 24, 1983, CSC entered into a contract with AT&T for the lease and optional sale of micro systems equipment (the "BASICS" agreement). PSO paras. 6, 7. Plaintiff's involvement with this sale was admittedly significant. Defendant's Moving Brief at 5. Both parties agree that the Fiscal 1984 ICP then in effect was not appropriate for determining a reasonable commission for plaintiff on this sale and, indeed, says defendant, under the ICP plaintiff's commission would have been restricted to $ 3000. *fn2"

 What is in dispute in this case is what new agreement was reached and whether it was a new agreement or simply a modification of the Fiscal 1984 ICP. However, for purposes of this motion, CSC concedes "that a manager of CSC made a verbal representation that [plaintiff] would receive incentive payments of 3 % of the revenues received under AT & T 'BASICS' over the three year period of the Agreement." Moving Brief at 13-41. *fn3" This concession conforms to what plaintiff states, at least in the PSO, forms the crux of his complaint and what he intends to prove at trial. PSO Plaintiff's Contested Allegations paras. 1-2. Plaintiff voluntarily resigned from CSC on April 30, 1984 and filed this complaint a year and one half later.

 N.J.S.A.25:1-5 provides in relevant part:

 
No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized.
 
* * *
 
e. An agreement that is not to be performed within one year from the making thereof.

 The Statute of Frauds was passed to ensure that certain types of contracts would only be enforceable if in writing. The statute generally applies to contracts which, because of their alleged terms, require a higher degree of proof. Before binding a party to take on a long term contractual commitment - e.g. a contract that can not be performed within a year - the party seeking to enforce that promise must offer it in writing. See generally Murray on Contracts, § 312 et seq. (1974).

 In Loeb v. Peter F. Pasbjerg & Co., 22 N.J. 95, 99, 123 A.2d 522 (1956), the Supreme Court of New Jersey noted that N.J.S.A. 25:1-5 "is inapplicable to an oral agreement bearing no fixed term and possibly performable within the year even though complete performance within that term may be unlikely." Accordingly, contracts for life are not barred by this provision because the employee might die within a year of its making. Shiddell v. Electro Rust-Proofing Corp., 34 N.J.Super. 278, 282, 112 A.2d 290 (App. Div. 1954) citing Deevy v. Porter, 11 N.J. 594, 597, 95 A.2d 596 (1953); Murray on Contracts, § 319 and cases cited therein. But plaintiff, at least as of the time of the PSO, committed himself to proving that the oral agreement at issue here was not for an unspecified term but alleged that it was for three years. *fn4" The Loeb exception is not applicable. Furthermore, even if the court allowed plaintiff to retreat at this late date from this three year argument, New Jersey law would bar enforcement of this oral promise because, as developed below, the terms of this alleged promise cannot be reasonably ascertained. Woolley supra.

 Plaintiff also argues that the Statute of Frauds does not bar his claim because AT & T could have terminated BASICS at any time within the three year period subject only to a cancellation penalty. This argument is unavailing, however, because plaintiff alleges that regardless of what AT & T did or did not do "defendant agreed to make these payments of commissions ...


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