Harris v. Duke Power Co. , 83 N.C. App. 195 ( 1986 )

Judge Phillips

dissenting.

In my opinion this is a simple, well pleaded breach of contract suit that was improperly dismissed at the pleading stage. Except for legal inhibitions and limitations irrelevant to this case, employers and employees no less than others have the right under our law to contract as they see fit. Plaintiffs complaint clearly and explicitly alleges that the parties entered into a valid employment contract in which it was agreed that he would be dismissed only for certain stated causes, that the defendant breached the contract by firing him for a cause not agreed to, and plaintiff was damaged as a consequence. Thus, a claim for which our law has always authorized relief has been alleged and plaintiff is entitled to the opportunity to prove it.

Nor in my opinion is the case controlled by Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E. 2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E. 2d 39 (1986); because in Walker the employer expressly retained the discretionary right to do as it saw fit, which this employer did not do so far as plaintiffs complaint shows. Furthermore, if the parties did contract that plaintiff would be discharged only upon certain conditions, as plaintiff alleges, the employment was not nevertheless at will as the majority states, but an employment subject to being terminated upon the conditions stated, a different matter altogether. For if there was a valid contract it necessarily follows that defendant was obligated to follow the contract and did not have the right to violate it at will. I also disagree with the determination that as a matter of law the alleged contract was entered into without consideration. The complaint alleges that there was mutual consideration for the contract and in my view the allegation is not necessarily unprovable. Certainly, protection against being arbitrarily discharged from one’s job can be a valuable consideration to anyone accepting employment, and acquiring a stable and secure work force can be a valuable benefit to any employer. Whether the parties entered into a valid contract and, if so, what its terms and considerations were are not questions of law, but fact, and I vote to return the case to the trial court for resolution in the usual way.