WINAND v. CASE

R. DORSEY WATKINS, District Judge.

This is a diversity suit instituted April 7, 1955, for damages arising out of an alleged breach of a written contract to employ the plaintiff for life.1 The plaintiff's cause of action is framed in three alternative ways, the complaint alleging: (1) that the individual defendant's decedent, R. R. Trubey, as equitable sole owner of the Baltimore Enamel & Novelty Company (Baltimore Enamel), one of the present corporate defendant's predecessor corporations, acted for and on behalf of said predecessor corporation and executed a binding contract of employment between the plaintiff and Baltimore Enamel, which contract was wrongfully breached by the original defendant successor corporation; or (2) that R. R. Trubey entered into an agreement between himself and the plaintiff wherein Trubey bound himself to provide lifetime employment for the plaintiff either personally or by causing the original defendant corporation or its predecessor to enter into a formal contract of employment, which undertaking was breached by Trubey's failure to perform; or (3) that R. R. Trubey entered into an agreement with the plaintiff which was both a personal contract and a contract of Baltimore Enamel, to be performed jointly by both Trubey and the said corporation, and that the original defendant corporation's discharge of the plaintiff constituted a breach by both Trubey and the original defendant2 corporation. After the filing of answers, the filing of interrogatories and answers thereto by both sides, the taking of depositions by both sides, and the plaintiff's request for the admission of certain facts and the genuineness of certain documents,3 both the individual defendant and the corporate defendant moved pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment.

As grounds for the motion for summary judgment the individual defendant alleges that no contract of employment ever existed between Trubey and the plaintiff; that no contract of lifetime employment ever existed between Trubey and the plaintiff or the defendant corporation and the plaintiff; and that the action is barred by the Maryland Statute of Limitations. The corporate defendant asserts as its grounds in addition to limitations and failure to comply with the Statute of Frauds that it never executed or agreed to be bound by the alleged agreement; that there was no consideration to it for the agreement; that the agreement would have been an unauthorized and illegal exercise of corporate powers; that the plaintiff voluntarily left and refused to continue employment with the defendant corporation;4 that the agreement, if such existed, was not for lifetime employment; and that the defendant corporation never entered into a contract for lifetime employment with the plaintiff or any other employee.

The following facts are not in dispute.

On June 9, 1944, R. R. Trubey over the signature of Clyde Porcelain Steel Corp. (Clyde), and indicating that he was acting on behalf of that corporation as its president, addressed a letter to the stockholders of Baltimore Enamel proposing to do the following:

On June 16, 1944, the stockholders' attorney wrote Mr. Trubey in care of Clyde requesting clarification of certain details of the offer to which Mr. Trubey responded on June 22, 1944, again signing as president of Clyde. On July 5, 1944, the stockholders' attorney, having been advised of a proposed conference of stockholders to consider Trubey's proposal, wrote the plaintiff who at that time, although not a stockholder, was the Secretary, Treasurer and General Manager of Baltimore Enamel receiving a salary of $8,840 per annum, in part as follows:

The conference of stockholders was held on July 7, 1944, and the minutes of that meeting end:

Subsequent to July 7, 1944, and on or before July 18, 1944, the plaintiff became the owner of approximately two and one-tenth per cent of the common stock of Baltimore Enamel. On July 18, 1944, the stockholders of Baltimore Enamel, including the plaintiff wrote to Trubey, individually and not as president of Clyde, stating:

The memorandum of July 13, 1944, incorporated by reference in the offer, again recited that Trubey would cause Clyde to make the loan to Baltimore Enamel and, in addition to various other provisions, that Trubey would individually guarantee for the first year the payment of the 6% interest on the notes totaling $200,000. No reference was made, in either the stockholders' offer or in the therein incorporated memorandum, to paragraph three of the letter of June 9, 1944, relative to the plaintiff's employment. On July 18, 1944, by acceptance of the stockholders' offer Trubey became the sole equitable owner of all the issued and outstanding capital stock of Baltimore Enamel and acquired subsequent thereto but during 1944 legal ownership as well. On the same day that the offer was made and accepted, Trubey addressed a communication to Mr. Brehm, Mr. Little, Mr. Blome and the plaintiff, stating:

Thereafter Baltimore Enamel issued its capital notes, proportionately to each owner of common stock as of record on July 18, 1944, in the total amount of Two Hundred Thousand Dollars, and the plaintiff received in August or September 1944 approximately Four Thousand Two Hundred Dollars worth of said notes. On August 1, 1944, the plaintiff was made Secretary and Vice President in charge of production of Baltimore Enamel at a salary of $8,840 per year. As such the plaintiff was the top operating officer of the corporation in charge of all manufacturing operations. In September 1944 Baltimore Enamel accepted a loan of $100,000 with interest at three per cent from the Maryland Trust Company and assigned its unpledged receivables in the amount of $100,000 as security therefor. On March 1, 1945, Trubey wrote the plaintiff on the letterhead of Clyde, in part:

The letter gave the plaintiff an option to purchase a similar additional amount within three years and contained an agreement between Trubey and the plaintiff providing that Trubey should have the option to repurchase the said ninety shares within one year, no right being reserved on the part of Trubey to repurchase any additional shares acquired by the plaintiff should the plaintiff exercise his option to purchase a similar additional amount within three years. Simultaneously with the issuance of the stock the plaintiff endorsed it to Trubey who then retained the shares as collateral for his option to repurchase. On March 1, 1946, upon termination of the repurchase option, Trubey returned the shares to the plaintiff exchanging 1440 shares of Baltimore Porcelain for the 90 shares of Baltimore Enamel, the name of Baltimore Enamel having been changed prior thereto on March 29, 1945, to Baltimore Porcelain Steel Corporation. On July 1, 1945, the plaintiff had become Secretary and Vice President in charge of finance of the Baltimore Porcelain Steel Corporation, his duties being to supervise office procedure and to arrange credit, collections, and loans. On March 1, 1952, Baltimore Porcelain Steel Corporation and Artcraft Manufacturing Corporation merged into Universal Major Elec. Appliances, Inc. (Universal), and the plaintiff was made Assistant Secretary of Universal with duties generally associated with the office of credit manager. On March 8, 1953, R. R. Trubey died, and on March 13, 1953, the plaintiff received oral notice that his services would be discontinued as of April 17, 1953, because Universal's administrative offices were being moved for purposes of economy to Lima, Ohio. The plaintiff received full pay through May 17, 1953 and half pay until July 1953.

From 1945 until the termination of his services the plaintiff's salary had never been less than $8,840 per annum and was in April of 1953, $11,700 per annum. Since the bringing of this suit on April 7, 1955, Universal which admittedly had assumed the liabilities, debts, and contracts of its predecessor corporations, has merged into Birdsboro Steel Foundry & Machine Company (Birdsboro) and Birdsboro has been substituted as the corporate defendant.

Following oral argument on the defendants' motions for summary judgment, plaintiff's counsel advised the court, in part, as follows:

This, in effect, constitutes a motion by the plaintiff to dismiss the action asserted in portions5 of both counts two and three. The court pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure grants the motion.

The remaining cause of action against the individual defendant, being in the alternative to the cause of action against the corporate defendant and depending for its success upon a finding that the plaintiff has no binding contract of employment for life with the corporate defendant, is barred by the Statute of Limitations, suit not having been instituted until April 7, 1955. Section 1 of Article 57 of the Code of Public General Laws of Maryland, 1951 Edition, provides:

In Vincent v. Palmer, 1941, 179 Md. 365, 374, 19 A.2d 183, 189, the Maryland Court of Appeals said in discussing Article 57, Section 1, "* * * the statute begins to operate at the time the cause of action becomes vested and enforceable, not from the time of the making of the promise. Murdock v. Winter's Admr., 1 H. & G. 471, 473." The plaintiff's cause of action, if any, against the individual defendant, arose upon Trubey's failure to cause Baltimore Enamel to enter into a contract to employ the plaintiff for life. "An unexcused failure to perform a contract is a legal wrong. Action will lie for the breach although it causes no injury. Nominal damages are then awarded." (5 Williston on Contracts, Revised Edition, Section 1339A, p. 3766; accord: Duplex Envelope Company, Inc., v. Baltimore Post Company, 1933, 163 Md. 596, 606, 163 A. 688; Wlodarek v. Thrift, 1940, 178 Md. 453, 461, 13 A.2d 774; see also: Hahn v. Claybrook, 1917, 130 Md. 179, 182-183, 100 A. 83, L.R.A.1917C, 1169). All facts indicate that the alleged failure to perform occurred on August 1, 1944. Trubey's communication of July 18, 1944, stated, inter alia, "if I accept that offer by August 1, 1944, then I will carry out * * * the undertaking proposed by me * * *." (Emphasis supplied.) "Then", of course, may be defined as meaning "`at that time'", "soon afterwards", "immediately" or as having no reference to time and meaning rather "in that case". 86 C.J.S. Then pp. 770-772.

It is significant that by August 1, 1944, Trubey had become the sole contract owner of all the stock of Baltimore Enamel6 and thus, according to plaintiff's theory, was in a position to perform, and that on August 1, 1944, the plaintiff was, in fact, promoted from Secretary, Treasurer and General Manager to Secretary and Vice President in charge of production, thus functioning as the top operating officer of Baltimore Enamel and being in charge of all manufacturing operations.7 To this extent on August 1, 1944, the undertaking of paragraph three of the letter of June 9, 1944, had been carried out or breached. If more were required, the plaintiff was entitled to enforce his rights as of that date, but even if the reasoning of the plaintiff were accepted that the alleged contract was silent as to the time of performance, therefore affording Trubey a reasonable time in which to cause Baltimore Enamel to employ the plaintiff for life, the conclusion reached would be no different.

According to plaintiff's own "chronology of admitted facts",8 after the plaintiff's acceptance of his new position as Vice President on August 1, 1944 and more than three years prior to the bringing of this suit, the following occurred:

        "March 29, 1945- Name of Baltimore Enamel & Novelty Co. changed
                           to Baltimore Porcelain Steel Corporation.

        "July 1, 1945    - Plaintiff became Secretary and Vice-President in
                           charge of Finance of Baltimore Porcelain Steel Corporation,
                           duties being to supervise office procedure
                           and to arrange credit and collections and arrange
                           for loans.

        "January 2, 1952 - Universal Major Elec. Appliances, Inc. formed as
                           a Delaware corporation.

        "March 1, 1952   - Baltimore Porcelain Steel Corporation and Artcraft
                           Manufacturing Corporation merged into Universal
                           Major Elec. Appliances, Inc.

        "March 1, 1952   - Plaintiff made Assistant Secretary of Universal
                           Major Elec. Appliances, Inc. with duties generally
                           associated with office of assistant secretary (together
                           with other duties previously assigned) * *"

Yet during this entire period of over seven and one half years from the making of the alleged promise on July 18, 1944, to the demotion of the plaintiff to Assistant Secretary on March 1, 1952, plaintiff did nothing to enforce his alleged contractual rights. Plaintiff explains by saying his relationship with Trubey was "one not calculated to make him press the matter of entering into a formal contract, particularily [sic] when consideration is given to the fact that the Plaintiff thought he already had such a contract."9

What constituted a reasonable time is in the instant case a matter for determination by the court (Nunez v. Dautel, 1873, 19 Wall. 560, 563, 86 U.S. 560, 563, 22 L.Ed. 161; Ragan v. Gaither, 1841, 11 Gill & J., Md., 472, 490; North Brothers & Strauss v. Mallory, 1902, 94 Md. 305, 318, 51 A. 89). The court finds as a fact and rules as a matter of law that, even if Trubey had a reasonable time in which to perform, a period of seven and one-half years constituted more than a reasonable time under the circumstances herein, and therefore a breach of any alleged contract with the plaintiff, and that the plaintiff's suit is barred by limitations, he having failed to bring his action within three years from the time such cause of action accrued. As to the plaintiff's allegation that he thought he had a contract of employment for life with Baltimore Enamel, the plaintiff's ignorance of his rights does not defeat the bar of the Statute of Limitations (Abell v. Harris, 1841, 11 Gill & J., Md., 367, 372). Although no fraud on the part of Trubey has been intimated, much less alleged, plaintiff would, even in the face of a fraudulent concealment by Trubey of his failure to perform, have to show usual or ordinary diligence to discover his cause of action, an insurmountable burden for the plaintiff in the instant case considering the knowledge that he must have had of corporate affairs both as a stockholder and as an officer of the corporation. (Art. 57, Sec. 14, Code of Public General Laws of Maryland, 1951 Edition).

This leaves then as the sole issue the question of whether or not the plaintiff had a valid, binding contract of employment for life with the defendant corporation, or its predecessor corporations. The plaintiff contends that four documents (1) the offer of June 9, 1944, (2) the counter-offer of July 18, 1944, incorporating, (3) the memorandum of July 13, 1944, and (4) Trubey's letter of July 18, 1944, "when integrated", constitute his contract of employment. It is apparent from the face of these writings that they can not be integrated. The original offer of June 9, 1944, was made by Trubey as president of Clyde to all of the stockholders of Baltimore Enamel and the undertakings proposed therein were couched in terms of "we propose", "we will furnish", and "it will be desirable to us". The stockholders on advice of counsel did not consider this an offer subject to acceptance or rejection, even although the offer had been somewhat clarified and more sharply defined by the interim correspondence of June 16th and June 22, 1944, and, accordingly, all of the stockholders made on July 18, 1944, a counter-offer to Trubey individually which was subject to a flat acceptance or rejection and which, if accepted, bound him to such personal undertakings as the purchase of all of the stock of Baltimore Enamel and the guarantee of the payment of the first year's interest on the notes to be issued, and also to cause Baltimore Enamel and Clyde to do certain corporate acts. The plaintiff's contention that, thereafter, by unilateral action on the part of Trubey in making an offer of employment, which offer was uncommunicated to, and hence not accepted by all of the stockholders of Baltimore Enamel, the proposal in paragraph three of the letter of June 9, 1944, was incorporated into the agreement between Trubey and said stockholders is not supported by the law, or the facts of this case. That any attempt by Trubey to modify, or add to, the offer made to him would have constituted a rejection by him of that offer is so basic to the law of contracts that no authority need be cited and, as a matter of fact, the offer itself so stated. Trubey accepted the offer unconditionally by writing across the face of the letter making the offer over his signature "I hereby accept the above proposal."

That the four documents in question can not be integrated is further evidenced by the fact that Trubey's communication of July 18, 1944, was not addressed to all of the stockholders of Baltimore Enamel but rather only to the individuals previously mentioned in paragraph three of the letter of June 9, 1944, namely, Mr. Brehm, Mr. Little, Mr. Blome and the plaintiff, persons whom the plaintiff has consistently referred to as constituting the stockholders' committee; but the minutes of the conference of the stockholders held on July 7, 1944, clearly indicate that Mr. Brehm was not a member of that committee and that the purpose of, and authority conferred on, that committee was to negotiate the terms of the final agreement. By July 18, 1944, negotiation was over and a firm offer had been made on the part of the stockholders. As evidencing a written contract of employment the plaintiff must rely solely on Trubey's communication of July 18, 1944, incorporating by reference the undertakings proposed in paragraph three of the letter of June 9, 1944.

Assuming for the moment that these two writings constituted an offer to the plaintiff by Trubey of employment for life and that the plaintiff merely by continuing in, and failing to resign from, the employ of a company with which he had previously been associated for twenty-two years evidenced an acceptance of this offer, the plaintiff still can not recover unless he can go further. When "an employee of a corporation claims that he has been employed on a lifetime basis, he must show either (1) that the officer who made the contract of employment acted on behalf of the corporation with authority for that purpose, or (2) that the contract was ratified by the corporation or its fruits were accepted with full knowledge of the circumstances of their acquisition. Heaman v. E. N. Rowell Co., 261 N.Y. 229, 185 N.E. 83; General Paint Corporation v. Kramer, 10 Cir., 57 F.2d 698, 703; 2 Fletcher, Private Corporations, Perm. Ed., sec. 677." Chesapeake & Potomac Telephone Co. of Baltimore City v. Murray, 1951, 198 Md. 526, 531, 84 A.2d 870, 872.

The plaintiff does not contend that the by-laws and corporate records of Baltimore Enamel show any ratification, adoption or acceptance of the contract, or that the Board of Directors ever took any action of any nature to adopt any contract with the plaintiff. The plaintiff rather seeks to come within the test laid down in the Chesapeake & Potomac Telephone Co. case, supra, by alleging10 that Baltimore Enamel "accepted said contract and the fruits flowing therefrom (the One Hundred Thousand Dollar ($100,000.00) loan at three percent (3%)) at a time when the corporation's officers and directors were fully aware of the provisions running in favor of the Plaintiff. Even more important,11 the execution of the agreement by Trubey at a time when he was equitable sole-owner of all the stock of the corporation, was binding on the corporation, it being his intention to so bind the corporation." This court has already ruled that the One Hundred Thousand Dollar loan to Baltimore Enamel was the result of, and a provision of, the contract between Trubey and all of the stockholders of Baltimore Enamel. After the contract between Trubey and all of the stockholders came into existence, some of the officers and directors of Baltimore Enamel, whose knowledge of the provisions of the alleged agreement between Trubey and the plaintiff, among others, it is argued bound the corporation, were the very parties to that agreement in whose favor it ran—Mr. Brehm as Chairman of the Board; Mr. Blome as director and Vice-President; and the plaintiff as director, Secretary' and Vice-President. This is scarcely the type of acceptance with full knowledge that was envisaged by the court in Chesapeake & Potomac Telephone Co. of Baltimore City v. Murray, supra. The plaintiff's second contention that Trubey as sole owner could, intended to, and did, bind Baltimore Enamel places the plaintiff in the dilemma of asking this court to pierce the corporate veil at the time of Trubey's acceptance of the stockholders' offer and thus consider the execution of a subsequent agreement by him at a time when he was the equitable sole owner of all of the stock of the corporation as binding, and intended to bind, the corporation; and then asking the court to reinstate the corporate identity of Baltimore Enamel and to construe Trubey's procurement of the loan granted (by Maryland Trust, not Clyde) to the corporation of which he was sole owner as constituting consideration to the corporation to support its promise or undertaking to hire the plaintiff for life. Were the plaintiff's theory that the court should not regard Trubey and Baltimore Enamel as independent persons consistently followed, then the procurement of the loan by Trubey and the acceptance of the loan by Baltimore Enamel (Trubey's alter ego) could hardly constitute consideration for Trubey's and/or Baltimore Enamel's undertaking to employ the plaintiff for life. This court sees no reason to fail to follow the general rule that a corporation, even if owned solely by one person, will be regarded as an independent person distinct from its shareholders subject to exception only when necessary to prevent fraud or to enforce a paramount equity. Brune on Maryland Corporation Law, Revised Edition, Sections 371-372, pp. 433-440.

Moreover plaintiff's contention that the execution of the agreement of employment by Trubey at a time when he was equitable sole-owner of Baltimore Enamel bound that corporation is so damaging to the plaintiff's cause of action as to destroy it completely. This allegation can only be interpreted as meaning that Trubey first accepted the stockholders' offer of July 18, 1944, for the sale to him of all of the stock of Baltimore Enamel and that thereafter having become by such acceptance equitable sole owner, he made his offer of employment to the plaintiff and others.12 The plaintiff's chronology of admitted facts so states:

        "4. July 18, 1944-Acceptance of offer of stockholders by R. R. Trubey

        "5. July 18, 1944-Letter by Trubey to stockholders committee stating
                          that Trubey will undertake to carry out the provisions
                          of #3 of letter dated June 9th relating to
                          employment of Winand and others."

If this be true, then the plaintiff's offer of his two and one-tenth percent interest in the stock of Baltimore Enamel did not constitute the consideration13 for the so called agreement between himself and Trubey, as originally alleged in the complaint, the purchase of the stock having been consummated prior to Trubey's subsequent, and, therefore, gratuitous, offer of employment. As further consideration the plaintiff asserted in his complaint the doctrine of detrimental reliance in that "at the time the said contract was made, the Plaintiff, being then but forty-nine years of age, could have sought employment elsewhere, but decided not to do so in view of the said contract of continued employment, and thereby the Plaintiff's reliance upon said contract and the validity thereof, should the same be uninforceable [sic] by him for want of consideration at the time of its inception, would cause him great and serious damage." This last contention is quickly answered by a quotation from Chesapeake & Potomac Telephone Co. of Baltimore City v. Murray, supra, 198 Md. at page 533, 84 A.2d at page 873, wherein the Maryland Court of Appeals said:

The plaintiff, accordingly, finds himself in the position of being unable to show consideration if his theory as to ratification or acceptance by the corporation is followed and, on the other hand, unable to show ratification or acceptance by the corporation14 if his theory as to consideration is correct.

The aforegoing conclusions aside, the plaintiff still, as a matter of law, could not recover. The wording of the letter of June 9, 1944, and in particular the wording of paragraph 3 therein, are subject to the criticism advanced by Judge Parker in Lucas v. Federal Reserve Bank of Richmond, 4 Cir., 1932, 59 F.2d 617, 619:

Directly on point is Baltimore & Ohio Railroad Co. v. King, 1935, 168 Md. 142, 148-149, 176 A. 626, 628, wherein the court, in attempting to construe the terms of an alleged oral contract of employment for life, said:

This principle was reiterated and the alleged contract of employment for life held to be terminable at will in Chesapeake & Potomac Telephone Co. of Baltimore City v. Murray, supra, 198 Md. at pages 534, 536, 84 A.2d at pages 873, 874.

Part of the compensation to be paid the plaintiff was in the form of the issuance to him of new common stock. What tests of performance decided upon by the parties to the contract could the court have applied, if it had been called upon to do so, to determine whether or not the plaintiff had shown the ability required to make the business successful; whether or not the direction of the organization had been reasonable; or what constituted a reasonable amount of stock? The plaintiff's own testimony17 as to his interpretation of the alleged contract shows that he neither considered that he was bound to "execute such duties as may be required of him by the President" nor to accept the salary being paid to him at the time of the execution of the contract, that is, $8,840 per annum. The alleged contract as construed by the plaintiff may well be summarized in the following quotation from Baltimore & Ohio Railroad Co. v. King, supra, 168 Md. at page 147, 176 A. at page 628:

Even had the plaintiff's duties, wages, other compensation, and place of performance been specified with the requisite definiteness, his alleged contract would not have been one of employment for life. The sentence "it is also our desire to have * * * William Winant [sic] * * * remain active in the business indefinitely, * * *" can be construed only as meaning employment for an indefinite period. The plaintiff has attempted to rephrase the wording of paragraph 3 of the letter of June 9, 1944, so that the offer is that the plaintiff so long as he properly carries out his duties will remain active in the business indefinitely thus allegedly proposing permanent or lifetime employment, but this is not the wording of the so-called offer. The plaintiff's salary is to remain the same as long as he properly carries out his duties as determined by management while the duration of employment is for an indefinite period.

The plaintiff urges the "intention of the parties to enter into a contract of permanent or lifetime employment is [1] clear from the writing between and by the Plaintiff and other stockholders of The Baltimore Enamel and Novelty Co., predecessor to the Defendant Corporation, R. R. Trubey, Richard W. Case's decedent and the Corporate Defendant and its predecessors. However, if it be found that the words above stated when read together with the writings in their entirety are [2] vague and [3] ambiguous, then Plaintiff contends they are susceptible of interpretation by parole evidence." There is nothing ambiguous about the use of the word "indefinite" as applied to a period of time. As defined by Webster's New International Dictionary, 2nd Edition, Unabridged, p. 1262, indefinite means:

"More specifically, as when used in employment contracts, the word means uncertain as to time, but does not mean perpetual * * *." 42 C.J.S. Indefinite, p. 560. The parties employed a well known word with a well known meaning for the purpose of defining the duration of plaintiff's employment. Parol evidence is never admissible to vary or contradict the unambiguous terms of a written instrument. To say that "indefinite" by its very definition means "uncertain" is not to say that the meaning or definition of "indefinite" is uncertain but were the use of the word "indefinitely" to cause uncertainty as to the duration of the plaintiff's employment still no recourse could be had to parol evidence.

Finally, if the term employed were found to be ambiguous such a finding must be based, the plaintiff alleges, upon a reading in their entirety of the documents upon which he relies. What then the plaintiff is alleging is the existence of a patent ambiguity.

The Maryland Court of Appeals, while recognizing the rule, has pointed out the difficulty of applying it and has indicated where there is any doubt as to the meaning or application of a word parol evidence should be admitted. (Lambdin v. Dantzebecker, supra, 169 Md. at pages 246-247, 181 A. at pages 355-356; Applestein v. Royal Realty Corporation, 1942, 181 Md. 171, 174-175, 28 A.2d 830). This court, finding no doubt but desiring that the plaintiff have every opportunity to develop his case, requested that the plaintiff make a proffer of the evidence on which he would rely if it were held to be admissible.18 The proffer shows that the plaintiff being incompetent to testify, by statute,19 as to his transactions with Trubey, now deceased, would seek to have an attorney, whose testimony both individual and corporate defendants have foreclosed by a claim of attorney-client privilege, testify as to the subjective, not the manifested, intent of both the plaintiff and Trubey.

This case presents a strong example of the reason for the parol evidence rule, and for its application. Here the plaintiff wishes by parol evidence to show that "remain active in the business indefinitely" does not mean "indefinitely," but "for life or until normal retirement." There is not a word in the record about either of these periods of employment. The proffer, if admitted, would require further parol evidence: did plaintiff undertake to work for Baltimore Enamel for life; what was the age of "normal retirement"; was retirement at such age obligatory or optional?

What plaintiff in effect says is that as of August 1, 1944, he had, or should have had, a written contract of employment with some one. In 1957, after the death of the other individual through whom this contract was made, plaintiff seeks to have this court build from this straw a contract for a definite term, despite the authorities cited below that a hiring for an indefinite period is a hiring at will.

Accordingly, the testimony proffered by the plaintiff is inadmissible.

Thus, even if it were held that the plaintiff's offer to Trubey of his two and one-tenth percent interest in the stock of Baltimore Enamel constituted consideration to Trubey and that Trubey on becoming sole equitable owner of Baltimore Enamel could and did act in some way to bind the corporation, the plaintiff's contract was at the most a contract of employment for an indefinite period. The law is well established that a hiring for an indefinite period of time is terminable at the will of either party (McCullough Iron Co. v. Carpenter, 1887, 67 Md. 554, 557, 11 A. 176; Home News, Inc., v. Goodman, 1944, 182 Md. 585, 595, 35 A.2d 442; I Williston on Contracts, Revised Edition, Section 39, p. 106; Annotation, Contract of Hiring-Duration, 11 A.L.R. 469; Annotation, Contract of Hiring — Duration, 100 A.L. R. 834; Annotation, Contract of Hiring — Duration, 161 A.L.R. 706). The court is not unmindful of the fact that an exception to this rule may arise where an employee or agent furnishes consideration in addition to his services in that he must be retained in his employment for a reasonable period of time (Jack's Cookie Company v. Brooks, 4 Cir., 1955, 227 F.2d 935, 938-939, certiorari denied 1956, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443). Here the plaintiff is not suing to recover damages for breach of a contract of employment for a reasonable period of time but rather to recover damages for breach of a contract of employment for life, a cause of action which as a matter of law the plaintiff has failed to sustain.

Summary judgment for the defendants.