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.
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;
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
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 portions
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 Enamel
According to plaintiff's own "chronology of admitted facts",
"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."
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
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
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 alleging
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.
"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."
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 corporation
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 testimony
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  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  vague and  ambiguous, then Plaintiff contends they are susceptible of interpretation by parole evidence." There is nothing ambiguous
"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.
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
Summary judgment for the defendants.
"* * * discovering that one individual owned the whole capital stock, the transactions dealt with as corporate transactions were treated precisely as they would have been treated had the proceedings been against the individual owning all the stock; not because there was necessarily no difference between any of the ulterior consequences that might arise where there was no corporation, and those that might exist where there was a corporation the whole of whose assets and stock were owned by one individual; but because the law will not in any case suffer the corporate name—the mere shadow—to be interposed for the purpose of defeating substantial rights depending for their ultimate vindication not upon the accidental form of a transaction, but upon its inherent equity and justice."
"That all of the parties hereto or their predecessors, after the execution of said agreement, relied on the same, and the following actions were taken pursuant to said agreement:
"A. The Baltimore Enamel and Novelty Company issued its capital notes proportionately to each of the old stockholders of the Corporation for the total sum of Two Hundred Thousand Dollars ($200,000.00), payable on or before ten years from date with interest at six-percent (6%) per annum.
"B. Clyde Porcelain Steel Corporation loaned to Baltimore Enamel and Novelty Company the amount of One Hundred Thousand Dollars ($100,000.00) on collateral of unpledged receivables, with interest at the rate of three-percent (3%) per annum.
"C. All of the other terms and conditions of said agreement listed under paragraph A on page 2 of this declaration were abided by and performed by each and all of the parties to said agreement.
"D. The Plaintiff, William T. Winand, assumed his duties as Vice-President of said Corporation in accordance with the terms of said contract, and from that time until April 17, 1953, the Plaintiff diligently and faithfully performed all of the work and duties required of him under said contract of employment.
"E. That during the period of time from July 27, 1944 to April 17, 1953 The Baltimore Enamel and Novelty Company complied with the provisions of said contract with respect to the issuance of a reasonable amount of new common stock of said corporation to the Plaintiff, William T. Winand." Count I of plaintiff's complaint, p. 4; Count III of plaintiff's complaint, pp. 9-10. (Emphasis supplied.)
Trubey's letter stating "if I accept that offer by August 1, 1944" (the stockholders' offer to sell) clearly shows, on its face, that no binding contract yet existed relative to the sale and purchase of the stock of Baltimore Enamel and that, accordingly, the alleged agreement of employment was executed by Trubey at a time when he was not the contract or equitable sole owner of Baltimore Enamel and thus was not in a position to bind Baltimore Enamel. Such a conclusion is likewise dictated by plaintiff's contradictory "Chronology of Admitted Facts" where in outlining the events occurring on July 18, 1944, the plaintiff lists in sequence the offer to sell, the acceptance, Trubey's offer of employment to the plaintiff, and then adds:
"6. July 18, 1944 — Baltimore Enamel & Novelty Co. issued $200,000, 6%, 10 year notes to stockholders as agreed and R. R. Trubey became owner of all capital stock of Company."
"My clients, the controlling stockholders in the Baltimore Enamel & Novelty Company, have discussed with me your letter of June 9 and have asked me to reply to the same. There are some matters in your letter which are not entirely clear to me and as to which I should like to have a further explanation.
"One: With regard to the $100,000. additional working capital. I assume this is to be a loan, but would like to know how long it is to run, what rate of interest it is to bear and what security you intend to require for the same. (Emphasis supplied.)
"Two: My clients feel that there should be a provision in the agreement that no salaries will be paid to you or your associates until after profits sufficient for the preferred stock dividends are made.
* * * * *
"Four: There should be some provision in the agreement as to the retirement of the preferred stock. What is your suggestion on this point?
"Five: There should be provision that there is not to be any issue of bonds or other securities which will take precedence over the preferred stock."
In effect, the stockholders' attorney was saying that the most important undertakings of the proposal, the offer to supply additional working capital (paragraph one of the letter of June 9, 1944) and the provisions relating to the protection of the preferred stockholders (paragraph two of the letter of June 9, 1944) were not expressed in terms definite enough to constitute an enforceable agreement. A fortiori, the mere indication of the desirability of certain persons remaining in the employ of Baltimore Enamel (paragraph three of said letter) was at the most "a hopeful encouragement sounding only in prophecy". The wording of paragraph Three taken as a whole, without limiting the analysis thereof to those portions referring solely to the plaintiff, dictates such a conclusion, the language used being "so long as the operations justify"; "may either remain active * * * at * * present, or a reduced, salary, to be mutually agreed upon, or * * * may retire on a pension or income of not less than $100 per month and not more than $250 per month;" "will remain as Vice-President in charge of sales, subject to our direction;" "will execute such duties as may be required of him by the President"; and "* * * salaries * * * will remain the same as they are now so long as they [plaintiff and Blome] properly carry out their duties as determined by the new President * * *."
"Q. Now, let us go back to Mr. Briscoe's interrogation on offers of employment from Universal. You went into detail about an offer of employment after Morton Clark [president of Universal] became angry. Were there any further offers of employment from Universal? A. They followed it up.
"Q. How did they follow it up? A. Mr. Schaeffer, the Director (?) [sic] of the company, Herbert Schaeffer, called me down to his office, and he used all his might to sell me the idea of going to Lima — wonderful place, beautiful city, fine living quarters, and nice people and associates.
"Q. Did he offer you any particular salary? A. He offered $8,000.
"Q. What was his position with the company? A. Then he had jumped up to Credits and Order Department — headed up the Credits and Order Department.
"Q. Did you receive any further — A. Now, prior to that and the same day that Clark offered me $6,000, by the time I got home he jumped it up to $7,000.
"Q. How about Gordon Sliter? Did he offer you a job? A. Gordon followed up for Clark.
"Q. Did you receive correspondence from him offering you a job? A. The offer had already been made when the correspondence originated.
"Q. Then, Mr. Sliter, you say, was acting for Mr. Clark? A. Yes, he is Clark's right hand man, very important man in the company.
"Q. You mentioned you were offered work in the Order Department at Lima. Had you been working in the Order Department theretofore, for the company? A. No, only incidentally.
"Q. Did you feel especially qualified or qualified to work in the Order Department? Was that in the line of work you had been doing before? A. I have pretty rounded knowledge of office routine. It was not to my liking. I would say, no.
"Q. Was it in line with the type of work you had been doing before you were discharged? A. Not exactly, no — similar."
Examination by Mr. Winand (William T. Winand, Jr., co-counsel for the plaintiff):
"Q. Let me ask you one question. Had you not been discharged and had the plant moved to Lima, as it did, and you would have resumed the position out there, or offered one equivalent to the one you had in Baltimore, would you have accepted it? A. Yes, definitely.
"Mr. Briscoe: I object to that.
"The Witness: That is prior to my discharge.
"Q. Why would you have accepted it at that time if such a position had been offered to you, and you said you did not accept the offers made to you after you received notice of discharge? A. One thing would be the money.
"Q. In other words, the offer made to you to go to Lima was considerably less than you had been making? A. Considerably less.
"Q. Would there be any other reason why you would not have gone to Lima after you had received notice of discharge? A. No." (Plaintiff's deposition p. 41, 1. 20 through p. 44, 1. 21.)
On examination by Universal's counsel:
"Q. How much money would you have had to have offered you to have induced or persuaded you to go to Lima, Ohio? A. My then salary.
"Q. In other words, you would have had to have an offer — A. Of $11,700.
"Q. Of $11,700? A. Yes.
"Q. To have persuaded you to have gone to Lima, Ohio in 1953? A. Prior to my dismissal, yes." (Plaintiff's deposition p. 46, 1.2 through p. 46, 1.13).
"Q. Why was it you did not take a job in Lima, Ohio for $8,000? A. I did not want to go there at the time.
"Q. Why? A. There was several reasons. One — Clark intimated his lawyer told him he should offer me a job in Lima to violate the contract. That was one reason. That was the only reason.
"Q. Are you saying now that that offer of $8,000 was not a bona fides [sic] offer? A. Yes, it was a bona fides [sic] offer.
"Q. Why didn't you take it? A. Because I did not want it.
"Q. Why didn't you want it? A. I told you I did not want to uproot here and leave Baltimore. At that time if the job had been offered me prior to my dismissal, I would have considered it then even at $8,000, but they had positions in Baltimore they could have offered me. The company had positions in Baltimore they could have offered me paying somewhere around that. They did not offer me anything. They did not offer me anything else in Baltimore. They did not make me any offer for Baltimore.
"Q. They were sending their personnel from Baltimore to Lima, weren't they? A. They had other jobs in Baltimore they knew I was qualified for.
"Q. Didn't Mr. Bosler tell you that your services in Baltimore were not required anymore, but that the personnel was moving to Lima, Ohio? A. He told me that, yes.
"Q. He told you that when he said your services were not needed anymore in Baltimore? A. That is right.
"Q. Those are the words he used? A. Yes." (Plaintiff's deposition p. 49, 1.20 through p. 51, 1.13.)
"Q. Why didn't you go to Lima? A. I did not want to go. I had a contract calling for employment in Baltimore.
"Q. Did you ever go to Lima to talk about a position with the company in Lima? A. No.
"Q. What was the reason you did not go to Lima? A. They did not offer me employment there until after my dismissal was final, and they did not offer me employment until I threatened suit under the contract. Under the circumstances I did not feel inclined to go, and the money was not sufficient.
"Q. In Mr. Sliter's letter to you dated May 13, 1953, he says that in the phone conversation he had with you, you said it was impossible for you to go out to Lima. Is that what you told him? A. I don't know. That certainly probably is [sic] not my words.
"Q. Did you say words to that effect? A. I said words to the effect that at this stage of life I did not want to be uprooted here and moved to a strange city." (Plaintiff's deposition p. 23, 1.11 through p. 24, 1.11.) (Emphasis supplied.)
"* * * That the Plaintiff intends to produce testimony through the witness, George Ross Veazey, explaining the meaning of Mr. Trubey's promise to the Plaintiff, among others, that the Plaintiff's salary `would remain the same * * * as long as he properly carried out his duties' and that the Plaintiff `would remain active in the business indefinitely'; that said testimony will show that the use of these words was understood both by Mr. Trubey and the Plaintiff to mean employment of the Plaintiff for life or until normal retirement; that the said testimony will show further the memorandum of July 18, 1944, entitled `Plaintiff's Exhibit A', heretofore filed in answer to Interrogatories which [sic] was prepared by Mr. Trubey himself.
"That the above proferred [sic] testimony was communicated by George Ross Veazey to William T. Winand, Jr. and John H. Hessey, IV, Counsel for the Plaintiff, at a personal interview, but is not before this Court at this time in spite of the Plaintiff's efforts to obtain this testimony in deposition form; that at the taking of the deposition of George Ross Veazey, he refused to testify in response to questions propounded by Plaintiff's counsel designed to produce the above set forth testimony on the sole grounds of confidential relationships between the attorney and his former clients, both the Plaintiff and the corporate Defendant's predecessors, unless instructed to do so by the Court."
"In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, * * * no party to the cause shall be allowed to testify as to any transaction had with, or statement made by the testator, intestate, ancestor or party so incompetent to testify, either personally or through an agent since dead, lunatic or insane, unless called to testify by the opposite party or unless the testimony of such testator, intestate, ancestor or party incompetent to testify shall have already given in evidence, concerning the same transaction or statement, in the same cause, on his or her own behalf or on behalf of his or her representative in interest; * * *."