DocketNumber: No. CV89 02 88 59S
Judges: FULLER, JUDGE.
Filed Date: 1/4/1991
Status: Non-Precedential
Modified Date: 7/5/2016
There is a dispute between the parties as to the terms of the arrangement between the plaintiff and Channel Net. The plaintiff claims he had an oral contract for a fee of 30% of the starting salary of any employee procured by him and accepted by Channel Net. On that basis the fee for procuring Jacobson would be $15,300, plus Connecticut sales tax of $1,147.50, for a total charge of $16,447.50. That amount was billed to Channel Net on October 24, 1988, the date that Jacobson started work, but it was never paid. The plaintiff claims breach of an oral contract in the first count of the complaint. In the alternative, unjust enrichment and reasonable value of services are claimed in the second and third counts of the complaint. The defendant has raised a defense that it was operating under a prior agreement between Data Switch and Andover Group Inc. signed by one Robert B. Meacham on February 20, 1988. It claims that the defendant believed that Catania was CT Page 647 employed by Andover Group Inc., a corporation thereafter called "Andover"], and that the agreement signed by Meacham controlled the amounts owed to the plaintiff. That agreement provided for a fee of 1% per $1,000 of annual salary up to a maximum of 25% for any applicant procured by the employment agency (Andover), but if the employee hired was terminated by Data Switch for any reason within 90 days that the agency would refund the full fee or find a replacement without cost to Data Switch. The defendant filed three special defenses and a counterclaim to recoup about $1,000 allegedly incurred as expenses in the hiring and training of Jacobson. The defendant also brought a third party complaint against Andover claiming reimbursement from Andover and an officer of it (Nemeth) for any amounts that the defendant was required to pay to the plaintiff
After considering all of the evidence the Court finds that the plaintiff has proven by a fair preponderance of the evidence that he entered into an oral contract with an authorized agent of Channel Net in May 1988 and that he procured an engineer who was hired by it. Channel Net made its own determination that Jacobson met its requirements. Channel Net had the right to discharge Jacobson for any reason, and the reasons for his discharge are immaterial to this action. The plaintiff fully performed the oral contract with Channel Net, and Data Switch is liable for any obligations that Channel Net owes to the plaintiff. Since Catania has proven breach of an oral contract under the first count of the complaint, he is not entitled to recover under the second or third counts. Unjust enrichment and reasonable value of services (quantum meruit) are forms of the equitable remedy of restitution where no express contract has been entered into by the parties, and they are available as remedies only when there is no recovery pursuant to a contract. Burns v. Koellmer,
The oral agreement for a 30% fee came with a guarantee by the plaintiff that if the employee left or was terminated by Channel Net within the first ten weeks of employment that the fee would be reduced by 10% of the total amount for each full week remaining in the ten week guarantee period. The customary procedure of Channel Net and the defendant was to require some guaranty for employees provided by an employment search agency so that there would be some reduction of the finder's fee if the employee didn't work out within a short period after commencing work, and Channel Net would not have entered into a contract with the plaintiff without it. The plaintiff also claims there was an agreement that the fee would be paid within 15 days of the employee's starting date. CT Page 648 When Catania sent out a bill to Channel Net for $16,447.50, the invoice attempted to tie together the guarantee provision and payment of the bill within 15 calendar days of the employee's starting date. While prompt payment of the fee was anticipated, the Court does not find, despite the invoice, that Channel Net agreed that the guarantee was contingent upon payment of the bill within 15 days. Jacobson was terminated in the sixth week after he started work. Under the terms of the oral agreement, the plaintiff lost 40% of the fee. Since the fee had not been paid he was entitled to 60% of it plus sales tax, or $9,868.50.
The Court finds that Catania was an independent contractor, and that he and others connected with Andover Group Inc. had a similar arrangement. They leased space from that corporation individually, and paid Andover for rent and operating expenses. Billings were done through Andover, which was entitled to deduct any unpaid expenses of Catania and remit the balance of his fees to him. The others employed by Andover including Meacham had similar arrangements. Neither Catania or Meacham were officers of Andover or had authority to bind it to contracts.
The defendant did not meet its burden of proof on any of the three special defenses. The defendant relies upon the agreement dated February 20, 1988 between it and Andover Group Inc. (Exhibit 3). While Andover is listed as the agency on that agreement, it is signed by Meacham without indicating in what capacity he was signing for Andover. The defendant has not proven that Meacham signed the agreement as an authorized agent of Andover. [There was evidence that Meacham was not an agent for Andover, despite any discussions that may have occurred in February 1988 between Meacham and the defendant.] The authority of an agent cannot be proven by the declarations of the agent. E. Paul Kovacs Co. v. Blumgarten,
There are other problems with the defendant's position. Catania was an independent contractor, not an employee of Andover, and neither he or Channel Net are parties to any agreement between Andover and Data Switch, even if Meachum had authority to enter into a contract for Andover. Also, it is clear that a subsequent oral agreement can supersede a prior written contract. First Hartford Realty Corporation v. Ellis,
There is also no merit to the counterclaim. Channel Net made its own decision on whether to hire Jacobson, and did not rely upon the plaintiffs belief as to Jacobson's qualifications. Moreover it did not incur any special expenses to train Jacobson as a result of any conduct of Catania.
The defendant has also failed to meet its burden of proof on the third party complaint against Andover and Nemeth. Even though the plaintiff billed Channel Net on an invoice bearing a letterhead of "Andover Group Inc." he was an independent contractor and the agreement of February 20, 1988 does not apply. Even by the terms of that written agreement, Andover only agreed to reimburse Data Switch for the fee paid by it "if for any reason the employee hired through this referral terminates employment at Data Switch within a 90 day period". Jacobson was not hired through that referral or actions of Andover. He was hired because of the plaintiff's services. Jacobson was not employed by Data Switch. He was employed by Channel Net. Jacobson was hired based on the oral contract between the plaintiff and Channel Net, not because of the written agreement between Data Switch and Meacham, whether or not Meacham was authorized to act for Andover. The third party defendants have no legal responsibility for any contract between Channel Net and Catania. The obligation of Data Switch to pay Catania is based solely on its acknowledged responsibility for legal obligations of Channel Net and not any contracts it may have had with Andover. CT Page 650
There was no evidence presented showing any involvement of Nemeth. While Meacham was named in the third party complaint as a defendant, he was never served and there is no jurisdiction over him.
The plaintiff claims interest at the legal rate of 10% per year on the amount owed by the defendant, based upon section
Judgment shall enter for the plaintiff on the complaint for $9,868.50 plus costs. Judgment shall enter for the plaintiff on the counterclaim. Judgment shall enter for the third party defendants on the third party complaint
ROBERT A. FULLER, JUDGE.