Appeal from the Circuit Court of Champaign County; the Hon.
CHARLES E. KELLER, Judge, presiding. Affirmed.
Rehearing denied January 23, 1964.
Plaintiff brought this action to recover damages for breach of an employment agreement. Judgment was entered on defendant's motion for summary judgment, from which judgment plaintiff appeals. In support of the motion, defendant attached affidavits of its President and Vice President, the deposition of each of these officers and the deposition of plaintiff. For a complete understanding of the case the substance of the complaint should be set out.
The complaint alleges an oral agreement between plaintiff and defendant made on May 30, 1960, whereby plaintiff was to start work for defendant on June 6, 1960, for at least one year as sales manager of defendant corporation. The complaint alleges that defendant represented it desired plaintiff to move from St. Louis, his home, to Champaign to undertake the job as sales manager. The complaint then charges that defendant "in order to induce the plaintiff to act, represented, stated and promised" to pay him $1200 per month plus a bonus to be later agreed upon, based upon a percentage of profits realized on the sale of used automobiles and trucks but in any event no less than $20,000 per year, pay plaintiff's expenses of moving his family and household effects, provide plaintiff with an automobile and certain extras and finally, to reduce the agreement to writing and execute the same on June 6, 1960. That plaintiff accepted the terms, not knowing the promises, etc., were falsely made and were in fact misrepresentations that defendant did not intend to keep. Induced by the promises and in reliance upon them, plaintiff resigned his job in St. Louis, moved to Champaign and expended and became liable for large sums of money and changed his position greatly to his detriment. From the record, it is clear that plaintiff left a job in St. Louis paying in excess of $1500 per month, moved his family to Champaign and undertook the job. He worked until March 18, 1961, then left defendant, alleging he left because of defendant's failure to act in accordance with its promises. There is complete disagreement as to the terms of the contract; however, this is of no importance in consideration of this case. The complaint anticipates the defense of the Statute of Frauds and alleges that defendant is estopped to assert this defense because of the facts alleged "inasmuch as the successful assertion of such defense would permit a fraudulent effect upon, and great prejudice to, the plaintiff."
To the complaint defendant first filed a motion to strike alleging the action barred by the Statute of Frauds and that the facts alleged do not set out an estoppel. The court denied the motion and defendant answered. As we have noted, the record does not dispute the contract, only the terms. There is no dispute that plaintiff moved to Champaign to undertake the job. For what it is worth, it is also noted that defendant paid plaintiff $1200 each month while he was employed, plaintiff claiming it was in accordance with the agreement he alleges, defendant claiming it was a base salary of $1000 plus an estimated $200 bonus per its offer and denies it agreed to a $20,000 minimum salary.
The issues are fairly well defined by the parties.
The Summary Judgment Act, paragraph 3, provides:
". . . The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. . ."
"Summary judgment procedure is not designed to try an issue of fact but rather to determine whether one exists. J.J. Brown Co., Inc. v. J.L. Simmons Co., Inc., 2 Ill. App.2d 132, 118 N.E.2d 781. If, upon examination of the record, it can be fairly said that there does exist a triable issue of fact then the motion for summary judgment should be denied. Barkhausen v. Naugher, 395 Ill. 562, 70 N.E.2d 565; Shirley v. Ellis Drier Co., 379 Ill. 105, 39 N.E.2d 329; Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 19 N.E.2d 363, 120 ALR 1395."
The duty of the court then is to ascertain if a triable issue exists and it is our opinion that we must first resolve the question of whether the action is within the Statute of Frauds and if so, is defendant estopped to assert this defense. The Statute of Frauds, Section 1 (Chap 59, Sec 1, Smith Hurd Ill Rev Stat) provides:
"That no action shall be brought . . . to charge any person . . . upon any agreement that is not to be performed within the space of one year from the making thereof. . ."
It is agreed that the above statute is involved and it is clear that no writing or memorandum was prepared outlining the agreement.
Defendant first contends the agreement is not within the Statute of Frauds, since it was impossible of performance in one year, citing Balstad v. Solem Machine Company, 26 Ill. App.2d 419, 168 N.E.2d 732. This contention is without merit, for clearly the agreement was for one year, starting June 6, 1960, and it is conceded the agreement was made May 31, 1960. In the Balstad v. Solem ...