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BOWERS WINDOW AND DOOR COMPANY, INC., WILLIAM B. BOWERS, AS AGENT FOR BOWERS WINDOW AND DOOR COMPANY, INC., AND WILLIAM B. BOWERS, INDIVIDUALLY v. RICK R. DEARMAN

SEPTEMBER 13, 1989

BOWERS WINDOW AND DOOR COMPANY, INC., WILLIAM B. BOWERS, AS AGENT FOR BOWERS WINDOW AND DOOR COMPANY, INC., AND WILLIAM B. BOWERS, INDIVIDUALLY
v.
RICK R. DEARMAN



BEFORE HAWKINS, P.J., SULLIVAN AND PITTMAN, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

Complaint was filed by Rick Dearman on or about February 8, 1987, in the Chancery Court of Lauderdale County against William B. Bowers and Bowers Window and Door Company (hereinafter" Bowers "). Dearman sought specific performance of an oral contract of employment, or alternatively, damages for breach of that contract. The cause came on for trial in the Chancery Court of Lauderdale County on May 28, 1987, before the Hon. George Warner, Jr.

At the conclusion of Dearman's case, both sides rested. The Chancellor held in favor of Dearman and awarded damages against Bowers Window and Door Company in the amount $2,000.00 per month from June 1, 1987, through December 15, 1988. In addition, Dearman was awarded a lump sum payment of $12,280.00 representing past due salary. The lower court also ordered that Dearman would be obligated to abide by the terms of the contract in the event Bowers elected to re-hire him, and that his expenses would be reimbursed according to the terms of the contract. Finally, William Bowers was dismissed from the suit individually.

 Bowers promptly filed notice of appeal and raises the following issues:

 I. THE LOWER COURT ERRED IN DETERMINING THAT THE ORAL EMPLOYMENT CONTRACT OF SEPTEMBER 3, 1986, WAS TO EXTEND THROUGH DECEMBER, 1988.

 II. THE LOWER COURT ERRED IN APPLYING THE DOCTRINE OF EQUITABLE ESTOPPEL AS AN EXCEPTION TO THE BAR OF THE STATUTE OF FRAUDS.

 Since 1978, Rick Dearman had been employed as a salesman for McGinnis Distributing Company in Meridian, Mississippi. Dearman was for the most part happy with his situation at McGinnis, but he desired more. Apparently feeling that McGinnis could not offer the kind of advancement he desired, Dearman embarked on a job search in mid-1986.

 Dearman's venture into the job market caused him to send a resume to William Bowers, president of Bowers Window and Door Company, then headquartered in Ridgeland, Mississippi. In his resume, Dearman included the usual facts and stated that the only employment move he would consider would be for an advancement over his present position. To put this consideration into perspective, Dearman was being paid a guaranteed salary of $300.00 per month plus commissions by McGinnis. In the year 1984, Dearman earned $41,000.00, in the year 1985 he earned $22,875.63, and through mid-September, 1986, he earned $20,844.00. At the time Bowers received Dearman's resume there were no immediate openings. However, Bowers lost a sales representative from the Jackson area in August, 1986, prompting William Bowers to contact Dearman. Bowers queried Dearman about the recent opening in the Jackson area, but Dearman declined an offer to interview because he had recently married, and he had just completed construction of a new home in Meridian. Dearman did, however, proposition Bowers about expanding into the Meridian area, but no accord was reached. From this point forward, details of the budding relationship begin to differ.

 It is Bowers's story that he heard nothing from Dearman after he declined to interview for the Jackson opening until Dearman showed up uninvited at the Ridgeland office on September 3, 1986. By this time the Jackson position had been filled, but Dearman was there to talk about a position in Meridian. William Bowers and Dearman met for approximately one hour and fifteen minutes, during which Dearman related his working knowledge and experience in the Meridian area, and allegedly told Bowers that he could generate $40,000.00 to $50,000.00 in sales per month in that area.

 Dearman, on the other hand, asserts that following his refusal of the Jackson position, William Bowers called him to say that he was considering expansion into the Meridian area, and that he wanted to talk with Dearman because of Dearman's experience in the Meridian area.

 Regardless of how the meeting came about, the parties uniformly agree that during this meeting on September 3, 1986, William Bowers extended on behalf of the company an oral offer of employment to Dearman, which Dearman accepted. The agreement provided that Dearman would work for Bowers as a sales representative in the Meridian area. Dearman thereafter began work for Bowers on September 15, 1986.

 It is likewise uncontradicted that one condition of Dearman's employment with Bowers was that he terminate his employment relationship with McGinnis, and this he did. However, before terminating his relationship with McGinnis, Dearman desired written confirmation of the Bowers offer. On September 5, 1986, a letter from Bowers was sent to Dearman and read as follows:

 This letter will confirm our conversation on Wednesday, September 3, 1986, wherein I offered you a sales position with our company. As stated, I will guaranteed you a base income of $24,000. [sic] yearly and an expense allowance of $400.00 per month.

 Sincerely,

 BOWERS WINDOW & DOOR CO., INC.

 /s/ William B. Bowers

 Dearman, William Bowers, and Sarah Bowers, secretary for the company, testified that the above terms are the only ones that Dearman requested confirmation on. All other terms, most notably duration, remained solely the subject of oral agreement. In addition to the guaranteed salary and expenses, Dearman was

 eligible for commissions on sales.

 One of the outcome determinative issues on this appeal is whether the parties orally agreed to a contract of employment for a definite term or indefinite term. Once again, the allegations differ sharply. According to Bowers, the employment agreement was for an indefinite term. In other words, Bowers viewed the relationship as terminable at the will of either party. Both William Bowers and Sarah Bowers testified that this was their understanding of the relationship.

 Dearman, on the other hand, asserts that William Bowers extended an offer of employment for a definite term to run from September 15, 1986, through December, 1988. Dearman testified that during the September 3, 1986, meeting, William Bowers" guaranteed [Dearman] employment through `88 "; that" [Bowers] stated to [Dearman] that he would guarantee . . . employment through `88 "; that the agreement reached on September 3 was for" secure employment through `88 at $24,000 per year guaranteed base income and expense account of $400 per month. "

 Leaving for now the question of duration, Dearman did not produce according to Bowers's satisfaction and this prompted Bowers to approach Dearman in early November, 1986. Bowers expected Dearman to generate the $40,000.00 to $50,000.00 in sales per month which he allegedly indicated he could produce. Dearman, of course, denies that he made this assurance, and testified that he told Bowers only that he could produce, but in no certain amount. William Bowers testified that he approached Dearman around November 1, 1986, to discuss his lack of production. According to interrogatory answers filed by ...


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