Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1010
Rothgerber, Appel & Powers, Ira C. Rothgerber, Jr., William P. Johnson, Robert S. Slosky, Denver, for plaintiff in error.
Samuel Berman, Walter O. Cass, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties make their appearance before this court in the same manner as they appeared at trial and shall be referred to as such.
The question with which we are concerned is an employment contract entered into between plaintiff as employee, and defendant as employer. Plaintiff was the owner of eighty percent of defendant corporation by virtue of inheritance from her husband. In 1960, an agreement was made whereby plaintiff sold her stock to two other parties involved in the corporation and, at the same time, entered into the employment contract which is the subject matter of this suit. The pertinent clauses of the contract provided that:
'1. The corporation will employ Evelyn F. Peterson as Executive Sales Representative, from the date hereof until November 1, 1970.
2. That Evelyn F. Peterson is to service the May--D & F account for the corporation, and will undertake such other contract work as may be mutually agreed upon.
3. That Evelyn F. Peterson shall diligently and faithfully serve the corporation in the capacity of Executive Sales Representative and shall devote the necessary time and energies to such service for the corporation, keeping accurate accounts of all transactions undertaken by her in connection with the position of Executive Sales Representative; and that she will exercise her best efforts to sell the corporation services at such price, or prices, and upon such terms as shall be fixed by the corporation.'
At the time the contract was negotiated plaintiff was, and remains, an employee of the department store, May--D & F.
It was further provided in clauses 4 and 5 of this agreement that plaintiff would receive a salary of one hundred seventy-five dollars per week, unless the May--D & F account were terminated, in which event plaintiff's salary was to be reduced to one hundred twenty-five dollars per week. A final clause also provided for non-competition by plaintiff in case of termination of the contract. From November 1960, the date the contract went into effect, until April 15, 1962, plaintiff was paid the full one hundred seventy-five dollars per week. At that time, plaintiff's salary was reduced by the company without her consent to one hundred dollars per week, on the ground that the company's business had declined. The one hundred dollar per week salary was discontinued entirely by the company on January 21, 1965. Plaintiff made demand upon defendant for resumption of her salary, and filed suit for breach of contract upon defendant's refusal of this demand. Defendant admitted the validity of the contract, denied it had breached it, and affirmatively raised the defense of breach by plaintiff, which breach was generally denied by her.
Trial was to a jury. At the conclusion of plaintiff's case, the defendant moved for dismissal of the complaint, which motion was denied at that time. At the conclusion of defendant's case, the motion for dismissal was again raised by defendant; this motion the trial court granted.
Plaintiff urges that the trial court erred in dismissing her complaint, and in refusing to admit into evidence agreements entered into contemporaneously with the employment contract.
The rule is well settled that where trial is to a jury it is for the jury to determine issues of fact and evaluate credibility. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353. For purposes of determining whether a complaint should be dismissed, the trial court must view the evidence in the light most favorable to plaintiff, drawing all legitimate inferences therefrom in plaintiff's favor, and deciding all issues of credibility in her behalf. Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964. Only where reasonable minds could draw but one conclusion from the evidence presented is the trial court justified in withdrawing the case from the jury. Roth v. Spelts, 137 Colo. 406, 326 P.2d 80.
The record in the instant case does not justify the dismissal of plaintiff's complaint by the trial court. The issue involved is whether there was a breach of an employment contract. Primarily this is an issue of fact, to be determined in plaintiff's favor if the evidence would support a finding that plaintiff complied with her part of the contract by performing all that was required and a finding that defendant failed to comply with the requirements of paying plaintiff the salary agreed upon. Since defendant admits to not paying plaintiff, but asserts that plaintiff breached the contract herself by failure to perform, the sole issue to be determined is whether or not plaintiff performed her part of the agreement.
According to plaintiff's testimony, she kept regular contact with May--D & F executives concerning the type and amount of work provided by defendant to May--D & F. There was evidence of plaintiff's services in procuring a price increase for defendant's product, and help by her in smoothing over relations in times of stress between defendant and May--D & F. There was no evidence presented that plaintiff had ever been called upon to perform any service which she failed to perform, and there was no evidence presented of any complaints to plaintiff as to the performance of her duties. Additionally, there is no showing that the services which she was performing at the commencement of the contract period were any different than the services being performed by her when her salary was reduced to one hundred dollars per week and again when defendant ceased paying her altogether.
Plaintiff established a prima facie case which, if believed by the jury, entitled her to recovery. As a consequence, the trial court's dismissal of her case was error and we must remand for a new trial.
Since we are returning this case for a new trial, we will discuss an issue raised on appeal which will undoubtedly arise again on the retrial. At trial plaintiff attempted to introduce evidence of acts and agreements entered into contemporaneously with the execution of the employment contract. On objection by defendant this evidence was refused. Plaintiff urges that this denial was error since the contemporaneous agreements were offered in evidence, as evidence of the interpretation placed upon this employment contract by the parties. Plaintiff concedes that such evidence is properly refused if offered for the purposes of varying the terms of the written employment contract, but plaintiff asserts that where such evidence merely goes to establish the meaning of the contract as intended by the parties, it was error to deny its admission.
No extrinsic evidence, such as contemporaneous agreements, is admissible if it is offered to vary or alter the terms of an unambiguous contract. Stice v. Peterson, 144 Colo. 219, 355 P.2d 948; Yamin v. Levine, 120 Colo. 35, 206 P.2d 596. If after consideration of the entire agreement, the provisions in controversy are found to be susceptible of more than one meaning, extrinsic evidence is admissible to establish the true intent of the parties as to these ambiguous provisions. Socony Mobil Oil Co. v. Humble Oil & Refining Co., 10 Cir., 387 F.2d 155; Jones v. United States, D.C., 96 F.Supp. 973, affirmed, 10 Cir., 194 F.2d 783.
The employment contract is vague concerning plaintiff's intended role of employment. The reading of this contract indicates that plaintiff must '* * * diligently and faithfully serve the corporation in the capacity of Executive Sales Representative * * *,' and '* * * devote the necessary time and energies to such service * * *,' and '* * * undertake such other contract work as may be mutually agreed upon.'
The entire tenor of this contract is vague and ambiguous as to the particular role plaintiff is intended to perform as Executive Sales Representative. The contract is silent as to under what circumstances, if any, it may be terminated. The extrinsic documents plaintiff seeks to introduce are geared to the entire agreement concerning the sale of her stock and her contemporaneous employment with the corporation. For this reason, the contemporaneous agreements should be admitted.
Judgment reversed with directions that a new trial be held on all issues.
SILVERSTEIN, C.J., and DUFFORD, J., concur.