Meng v. Trustees of Boston University4/30/1998
Appeals Court
February 5, 1997.
Contract, Severance agreement, Consideration. Frauds, Statute of.
The plaintiff, Meng, was a vice-president at Boston University (university) who resigned his position in July, 1991, to protest what he regarded as the unethical and unprofessional behavior of the university's president, John Silber, in terminating a recently renewed contract with Linkage Corporation (Linkage). See Linkage Corp. v. Trustees of Boston University, 425 Mass. 1, 11 n.18 (1997). Meng succeeded in this action in recovering a judgment against the university of $195,000 as damages for the university's failure to implement a package of termination benefits to which the plaintiff claimed, and the jury found, he was entitled. The university appealed.
1. Lack of consideration.
The basis on which the plaintiff claimed his entitlement to the severance package B- fourteen months of salary and benefits and free tuition for two of his children, if either should later attend the university -- was an oral promise to that effect allegedly made by Silber to the plaintiff on July 3, 1991, just after Silber terminated the Linkage contract. The university argues that there was no consideration for the promise. Although the question is close, there was some evidence, in Meng's testimony, that in reaching the alleged agreement on July 3, Silber asked Meng to prepare a description of his duties with an eye to effecting a smooth transfer of Meng's responsibilities to others. Meng prepared the requested document and agreed to remain for a short period to offer any assistance requested during the transfer of duties. While there was strong evidence that transitional services were not bargained for as a part of the severance agreement, see United Beef Co. v. Childs, 306 Mass. 187, 190 (1940) (A onsideration consists only of that which the contracting parties offer and accept as such@), the Judge did not err in ruling that, on the evidence, the question was one for the jury.
2. Statute of Frauds.
The university argues that the agreement, even if made, is unenforceable under the fifth clause of the Statute of Frauds (G. L. c. 259, Sect. 1) as a contract not to be fully performed within one year. That clause has been construed not to apply to a contract that may be fully performed within a one-year period from the making of the contract although performance, in fact, may extend beyond one year. Peters v. Westborough, 19 Pick. 364, 367 (1837). Bolton v. Van Heusen, 249 Mass. 503, 506 (1924). Joseph Martin, Inc. v. McNulty, 300 Mass. 573, 577 (1938). Boothby v. Texon, Inc., 414 Mass. 468, 479 (1993). Novel Iron Works, Inc. v. Wexler Constr. Co., 26 Mass. App. Ct. 401, 410-411 (1988).
To illustrate, an oral contract of permanent employment or employment for an indefinite period is enforceable under the statute because the employee may die in a period of less than one year or the employer may go out of business. See, e.g., Dunne v. Fall River, 328 Mass. 332, 334 (1952); Boothby v. Texon, Inc., 414 Mass. at 479; Johnson Clinic, Inc. v. Huffnagle, 2 Mass. App. Ct. 837 (1974). See also Sereni v. Star Sportswear Mfg. Co., 24 Mass. App. Ct. 428, 433-434 (1987). In contrast, a contract of employment for a definite period in excess of one year, or for one year to start more than one day after the making of the contract, is not enforceable under the statute, because it is not capable of being fully performed within one year from the making of the contract. See, e.g., Williams v. Pittsfield Lime & Stone Co., 258 Mass. 65, 69 (1927); Beaver v. Raytheon Mfg. Co., 299 Mass. 218, 220 (1938); Bogash v. Studios, Inc., 303 Mass. 207, 208 (1939)
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