in quoting Slonaker v. P. G. Publishing Company, 338 Pa. 292, 296, 13 A.2d 48, 50,
'* * * it is the intention of the parties which is the ultimate guide, and, in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.'
In discussing the factual situation, it is noticed that the Court says the plaintiff Lubrecht sacrificed other work in order to assume the duties as General Manager for the defendant company. Thus the decision discloses consideration by the plaintiff, i.e., giving up something of value. In the instant case, one can comb the record and find nowhere any indication that plaintiff McAleer gave up any right, assumed any burden or gave any consideration which would require a finding of a new agreement commencing April 14, 1959. In the instant employment arrangement certainly no one can say that defendant received anything more after April 14th than it did prior thereto. There was no benefit to the defendant which would give consideration for a binding contract. Likewise, plaintiff, not having terminated his employment prior to April 14th or at any time thereafter, was already legally obliged to do what he continued to do. The law of this phase of the case is clearly announced in Markson Bros. v. Redick, 164 Pa.Super. 499, 1949, at p. 506, 66 A.2d 218, at p. 221, where the writer refers to the Restatement, Contracts, § 76(a). Applicable language is used in the decision in quoting from 12 Am.Jur. 412,
'Each party must gain or lose something by the change. * * * If one party to a contract, in agreeing upon a modification of it, neither assumes an additional obligation nor renounces any right, the promise of the other is nudum pactum and void.'
Referring again to the testimony, there is no dispute that the parties had a conversation by telephone prior to plaintiff's taking employment with Peter Loftus. As indicated, plaintiff felt bound to consult Mr. McNally prior to accepting such outside work. This was certainly a modification of the arrangement mentioned in the April 14th letters. In that conversation what was agreed to was a modification of the original proposal which plaintiff says he accepted. In the modification Mr. McNally for the defendant reserved the right to review the matter at a later date. In his letter of April 13, 1960, suggesting termination one year earlier than first contemplated, he mentions two matters which had been the subject of prior reservation. The first was '* * * the shift in the center of gravity for coke oven work from Pittsburgh to Wellston', and the second was his employment 'in the meantime by Peter Loftus'.
In summary then, under all of the evidence, I find that defendant at no time offered an employment contract to plaintiff commencing April 14, 1959, and running to and terminating on July 31, 1961. I further find that plaintiff at no time ever intended to, nor did he offer any consideration, or suffer any detriment amounting in law to consideration, in continuing his employment status with the defendant.
My conclusion is that the arrangement between the parties was one at will after April 14, 1959. The obligation which plaintiff seeks to impose upon the defendant fails for lack of consideration.
This opinion is regarded as including the Findings of Fact and Conclusions of Law as permitted under the provisions of Rule 52 of the Federal Rules of Civil Procedure.
AND NOW, this 4th day of March, 1963, in accordance with the foregoing opinion, the Clerk is directed to enter judgment against the plaintiff, W. S. McAleer, and in favor of the defendant, McNally Pittsburg Mfg. Corp.
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