Peurifoy v. Congressional Motors, Inc.

Barnes, J., delivered the opinion of the Court. The Circuit Court for Montgomery County (Moorman, J.) on March 6, 1968, granted the motion of the appellee, Congressional Motors, Inc., the defendant below, to direct the verdict in its favor at the end of the case of the plaintiff below, David G. Peurifoy, the appellant here, on all three counts of the declaration. A motion for a new trial was filed and after a hearing was overruled by the trial court on July 2, 1968, when judgment for the defendants for costs was duly entered. The trial court filed a written opinion indicating its reasons for overruling the motion for a new trial.

The plaintiff filed a timely appeal from that judgment. The three counts were to recover damages (1) for an alleged libel, (2) for an alleged breach of contract, and (3) for an alleged fraud. The testimony produced by the plaintiff below indicated the following: Mr. Peurifoy, aged 49, had been employed in the financial management of automobile retail sales agencies for between 18 and 19 years prior to his employment by Congressional Motors in April, 1966. He had been employed during this time by well-known, large retail automobile sales agencies including Ourisman Chevrolet and.

Jim McKay Chevrolet as general manager and comptroller. He left the employment of those corporations of his own volition or because of circumstances be ⁵⁰³ yond his control, but in no instance was his employment terminated because of his employer’s dissatisfaction with his service. During the early part of April 1966, Robert Davis, an employee of Congressional Motors, communicated with Mr. Peurifoy in order to ascertain whether he knew of any qualified person who might be interested in filling a vacancy in the position of comptroller or general manager of Congressional Motors. After subsequent discussion with Mr. Davis, inquiry was made by Mr. Peurifoy in regard to the details of the vacant position and he then indicated to Mr. Davis that he, himself, might personally be interested in filling the position.

Thereafter an appointment was arranged for a meeting between T. J. Whalen, vice president of Congressional Motors and Mr. Peurifoy, which took place in Mr. Whalen’s office during the first half of April 1966. No one other than Mr. Whalen and Mr. Peurifoy was present at this meeting. Discussion was had in regard to the details of the employment, including duties and salary, and a second meeting was arranged to reach a final agreement in the matter. This second meeting occurred a few days later in the same place between Mr. Whalen and Mr. Peurifoy.

Mr. Peurifoy testified that a yearly salary of $15,000 for the remainder of 1966 and a salary for the year 1967 was fixed at $20,000, but no written agreement was prepared or executed by the parties. On cross-examination, Mr. Peurifoy testified as follows: “Q. And at that time you discussed the financial arrangements with Mr. Ted Whalen? A. That’s right, sir. “Q. Did you tell him you had been receiving $200.00 a week draw at McKay Chevrolet? A. I possibly told him that I had drawn $200.00 a week at McKay.

I told him what I earned, also, the prior year. “Q. He offered you then $230.00 a week? A. That’s right, sir. ⁵⁰⁴ “Q. What did you say to that? A. I told him, asked him if he could make it two and a half. “Q. What did he say? A. He said okay. “Q. Did you ask him anything about a car?

A. Yes, sir. “Q. What did you say about the car? A. A car was furnished. “Q. You asked him would he furnish a car? A. Yes, sir. “Q. What did he say? A. Said okay. “Q. How about the maintenance to that car, the gas and oil and the general overhaul and maintenance?

A. The company gave me an agreement on it. “Q. The employer was to take care of that? A. That’s right, sir. “Q. Then you stated that you told him that you wanted $15,000.00 for the year 1966? A. That’s right, sir. “Q. And he stated you would possibly do better, is that correct? A. That’s right, sir. “Q. What else did he say?

A. Best of my knowledge he said I would do better. “Q. Did he ever say to you, Mr. Peurifoy, T guarantee you $15,000.00 in the balance of the year 1966 and I guarantee you $20,000.00 for the year 1967?’ A. No, sir. He did not say this. “Q. But the extent of it was that he told you —quote — you would possibly do better? A. That’s right. “Q. And that was the extent of your conversation on your fifteen thousand and on your twenty thousand ? A. That’s right. “Q. You are' claiming that you had an employment contract with Congressional Motors which was to run from April of 1966 through at least the end of year 1967 and you were to be paid fifteen thousand in ’66 and twenty thousand in ’67; is that correct?

A. That’s correct.” ⁵⁰⁵ Mr. Peurifoy further testified that the books and records of Congressional Motors were in “deplorable” condition and that he worked quite hard and put in long hours to get them in good order. In October of 1966, Edward F. Belloff, a certified public accountant of the accounting firm of Belloff and Thompson, was brought in by Congressional Motors to assist Mr. Peurifoy in working on the books and records of the corporation. Mr. Bell-off continued to work on the books and records until December 1966, when he rendered a statement — but not a certification — to Congressional Motors. Just prior to Christmas 1966, Mr. Whalen called Mr. Peurifoy into his office and directed him to draw a check for $250.00 to Mr. Peurifoy’s order as his year-end bonus.

Mr. Peurifoy testified that he stated that “this is not the way I was hired” and then he and Mr. Whalen sat down in Mr. Whalen’s office and “went over the entire matter again as to our discussion originally when I went there in April.” After the holidays, Mr. Whalen and Mr. Peurifoy again discussed the matter and Mr. Whalen offered him $500. Mr. Peurifoy told Mr. Whalen that he would take the $500 “with no strings attached,” by which he meant that he “didn’t want it classified as a year-end bonus or final pay.” He then drew a check for $500 to his order and used it in regular course. Mr. Whalen had a key to Mr. Peurifoy’s desk, which was kept locked. Mr. Peurifoy noticed that his desk had been entered but when he asked Mr. Whalen about it, Mr. Whalen admitted he had been into the desk but when asked what he was looking for, replied, “Nothing.” Mr. Peurifoy went home from work at lunch time on January 16, 1967.

He testified: “* * * I was tired, highly nervous and physically — I never had this happen to me before — I just fell apart. I was sobbing. I was just completely exhausted.” Mrs. Peurifoy telephoned Congressional Motors and said that her husband was not returning. On Friday, January 20 an employee called and told Mr. Peurifoy that Mr. Whalen wanted to see him on Sat ⁵⁰⁶ urday morning and asked him to come by the office.

He did this and on Saturday, January 21, 1967, Mr. Whalen came in and handed Mr. Peurifoy a letter with two checks attached. Mr. Whalen stated “there was no need to go into a detail, that he thought the letter would be self-explanatory.” The letter was as follows: “Congressional Motors, Incorporated - January 21,1967 “Mr. David G. Peurifoy 609 Warfield DriveRockville, Maryland “Dear Mr. Peurifoy: “I am glad to hear that you did not have a nervous breakdown and that you are feeling better again. “When you left on Monday, January 16, 1967, we had occasion to go into your desk seeking information and were shocked at what we found. Listed below, in some detail, is a bill of particulars. This is without a thorough review of all the records, but it would indicate we will probably find a great deal more: Cash Drawer overage, January 12, 1967 — $306.00 Undeposited Checks payable to Congressional Motors, dating back at least 3 months — $5207.82 R.O.’s with releases and subrogation signed by customers dating back to June 6,1966 Accounts Receivable exceeding $30,000.00 No effort to collect Many R.O.’s left in drawers in general confusion AFA’s not reconciled “Obviously, this cannot be tolerated in any place of business.

I am therefore forced to terminate ⁵⁰⁷ your service with this company effective this date. “I do want you to know that we appreciate your efforts and extend my best wishes for your future. Sincerely yours, /s/ T. J. Whalen Vice President “TJW/ap” On cross-examination, Mr. Peurifoy testified that the AFA’s (Automotive Factory Adjustment) were not reconciled, that there was a cash drawer overage; that uncashed checks were in his drawer, and that a number of R.O.’s (repair orders) remained unprocessed on his desk, but on redirect examination, he denied these matters. He conceded, however, that during the entire period of his employment, he never reconciled the bank statements of Congressional Motors, for the reason, he stated, that the Company failed to deliver the bank statements to him. Mr. Peurifoy testified on cross-examination in regard to the cash drawer overage as follows: “Q. You had a returned check in your cash drawer with $30.00 in cash attached to this returned check ?

A. That’s right, sir. “Q. You had another returned check in your drawer with $60.00 attached to it? A. That’s right, sir. “Q. What was this cash? How did that cash get in your drawer ? A. The cash came from the customer. “Q. These were payments on— A. —on, toward the checks. “Q. Toward the checks?

A. If I had given the customer a receipt for this money at the time I would have voided our charge against them as far as the bad check charge goes. “Q. These customers were paying on their bad ehecks ? A. That’s right, sir. ⁵⁰⁸ “Q. And you were not going to deposit the cash that they gave you until they redeemed the full amount of the check? A. That’s right, sir. Management knew I was doing this in both instances. “Q. Did you ever consider depositing this cash into the bank account of the corporation and putting a notation that you were applying it in payment of a bad check?

A. No, sir. “Q. You never thought of that? A. No, sir.” Mr. Peurifoy admitted that Mr. Whalen at no time indicated that he doubted Mr. Peurifoy’s integrity or honesty. He stated that he obtained employment in the same type of work subsequent to January 21,1967, having gone to work for Ourisman Chevrolet on February 21, 1967. Thereafter he was employed by Bethesda — Lincoln-Mercury from September 11, 1967 to February 1, 1968, and thereafter by Bill Bagley Lincoln-Mercury (which took over the agency on February 1). until the time of the hearing in the case.

The plaintiff called Mrs. Ann Picot, who testified that she was a title clerk and secretary to Mr. Whalen; that she typed the letter of January 21, 1967, and knew its contents; and, that the only copy of the letter was delivered to Mr. Whalen. Mr. Belloff was also called as a witness by the plaintiff. He testified that he found Mr. Peurifoy to be cooperative and agreed that the books of Congressional Motors were in poor condition. He also testified that during the period of Mr. Peurifoy’s employment by Congressional Motors the accounts receivable were not “in very good condition,” there was improper coding on the AFA accounts which were also not reconciled; that there was improper coding of the customer deposit accounts; and, that there were improper records on the leased car accounts.

He further stated that there had been “some improvement” of the books during the period of Mr. Peurifoy’s employment but that the “improvement was not as much as it ⁵⁰⁹ probably should have been.” He further stated that Mr. Peurifoy’s procedure for handling the cash drawer overages and the bad check payments were not in accord with good accounting practice. Also introduced into evidence by the plaintiff, over the objection of the defendant, was an “Employment Verification Request” allegedly signed by T. J. Whalen on June 11, 1966, and delivered by Mr. Peurifoy to Weaver Bros., Inc., in connection with his application for a mortgage loan which reads, in part, “First Years Salary to be Min. of $15,000.00 with a Max. of $20,000.00.” The form also indicates that Mr. Peurifoy was “Asst. Gen. Manager,” was employed on April 27, 1966” and in the block entitled “Present rate of pay” is the notation under “Annual” of $13,000.00.

As we have indicated, the declaration — filed on June 2, 1967 — contained three counts. Count I recited a portion of the letter of January 21, 1967, charged Congressional Motors through its vice president, T. J. Whalen, with having maliciously prepared it, that it was dictated to Mr. Whalen’s secretary and that it greatly injured the plaintiff’s reputation. This libel count claimed $100,000 compensatory damages and $100,000 punitive damages. Count II recited the alleged agreement to pay $15,000 in salary and bonuses for 1966 and $20,000 for 1967, with a failure to pay more than $9,250 for 1966 leaving a balance due of $5,750 for that year and the entire $20,000 for 1967 because of the unwarranted termination of January 21, 1967.

Damages of $25,750 and costs were claimed. Count III alleged that the plaintiff was induced to leave his former employment by the promise of Congressional Motors to pay $15,000 for 1966 and $20,000 for 1967 but that the company did not intend to pay such salaries at the time, knew the plaintiff would rely on the promise to his detriment which the plaintiff did so that there was a false inducement resulting in $50,000 compensatory damages which the plaintiff claimed together with an additional $50,000 in punitive damages. The defendant pleaded the general issue pleas in tort ⁵¹⁰ and in contract, but there was no plea of justification filed to Count I. Also, as we have indicated, the trial court directed