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Keywords

contracttrialtestimony

contractplaintiffdefendantappealtrialverdictpleaunilateral contractappellantappellee

Related Cases

Ferraro v. Fink, 191 Kan. 53, 379 P.2d 266

Facts

Douglas T. Ferraro, a pathologist, sued A. A. Fink for unpaid wages after working at Fink's laboratory. Fink countered with a claim that Ferraro breached a non-competition agreement by opening a competing laboratory. Ferraro denied the existence of a valid agreement, asserting it lacked consideration and was not part of their original employment contract. The jury found in favor of Ferraro, concluding that the alleged non-competition agreement was not supported by consideration.

Plaintiff (appellee) Douglas T. Ferraro commenced this action against A. A. Fink, doing business as Lattimore-Fink Laboratories, defendant (appellant), to recover wages due and owing for services as a pathologist in defendant's laboratory.

Issue

Did the trial court err in submitting the question of consideration for the alleged unilateral non-competition agreement to the jury?

The sole question presented on this appeal is whether, under the circumstances, the trial court committed prejudicial error in submitting to the jury the question of whether there was any consideration for the alleged unilateral contract of May 20, 1959, made a part of defendant's cross petition.

Rule

The presumption of consideration for a written contract is a presumption of fact, which can be rebutted by proof of facts warranting the inference of no consideration. The presence of a benefit or detriment sufficient to constitute consideration is typically a question of fact for the jury.

G.S.1949, 16-107, provides all contracts in writing, signed by the party bound thereby, shall import a consideration.

Analysis

The court analyzed the evidence presented, noting that Ferraro's testimony indicated the non-competition agreement was unilateral and lacked consideration. The conflicting testimonies regarding the existence and terms of the agreement created a factual dispute. Given the circumstances, the court determined that it was appropriate for the jury to decide whether any consideration existed for the agreement.

In view of the issues joined by the pleadings in this action, and the fact that the May 20 purported agreement was unilateral in nature, reciting no consideration and being no part of the original contract of employment, and the fact that consideration for such instrument was highly disputed, the court did not err in submitting the question of consideration for the agreement to the jury under all the facts and circumstances in the case.

Conclusion

The court affirmed the trial court's judgment in favor of Ferraro, concluding that the question of consideration was rightly submitted to the jury.

The judgment of the trial court is affirmed.

Who won?

Douglas T. Ferraro prevailed in the case because the jury found that the alleged non-competition agreement lacked consideration, which was a critical element for its enforceability.

The jury returned a general verdict in plaintiff's favor for $816.62 and its answer to the following special question: '1. If you find that Dr. Ferraro signed a non-competition agreement, dated May 20, 1959, was there something of value, some promise, benefit or advantage constituting a consideration flowing to Dr. Ferraro in exchange for his signing? 'A. No.'

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