[691]CARTER, J., Dissenting. In my opinion the complaint sets forth circumstances showing that plaintiff will suffer an unconscionable injury if the oral contract with defendant is not enforced. It is alleged that plaintiff had been continuously employed as engineer and superintendent of the 834 South Broadway Building in the city of Los Angeles from the time it was erected in 1926 until October 14, 1945; that at the latter date plaintiff was employed under an oral agreement with the owner of the building, Aaron Weinraub, whereby plaintiff had a permanent lifetime job; that plaintiff resignéd this position at the request of defendant and in reliance upon an oral agreement with defendant; that the latter agreement provided that defendant would pay plaintiff a monthly salary and a yearly bonus in consideration of plaintiff’s giving up his position with Weinraub and taking a similar position' with defendant, the owner of the Ninth and Broadway Building, for a term of five years; that plaintiff took over his duties as superintendent and engineer of the defendant’s building on December 1, 1945, and performed such duties until February 21, 1948, when defendant discharged plaintiff without cause to avoid the payment of the bonus to which plaintiff was entitled.
The holding of the majority that the foregoing allegations do not state facts which estop defendant from relying upon the statute of frauds is based upon the proposition that a “permanent lifetime position” ordinarily means merely an employment for an indefinite period which is terminable at the will of either party and Murdock v. Swanson, 85 Cal.App. 2d 380 [193 P.2d 81], and Standing v. Morosco, 43 Cal.App. 244 [184 P. 954], are cited as authority for the conclusion that “The leaving of such employment for employment with defendant that is also terminable- at the will of either party because of the statute of frauds does not result in unconscionable injury.”
The complaint in the Standing case alleged that the plaintiff, at the defendant’s request, gave up his employment and sold his home and furniture in New York and moved to Los Angeles in order to enter the defendant’s employ in the latter city. The decision that a cause of action based upon an unconscionable injury had not been stated appears to have been based upon an erroneous conception of the proper construction of the pleadings. (See Code Civ. Proc., §452; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 42 [172 P.2d 867]; [692]Buxbom v. Smith, 23 Cal.2d 535, 542 [145 P.2d 305].) From the premise that “Assuming against the pleader, as we must, all facts reasonably consistent with the facts alleged, but adverse to the plaintiff,” (43 Cal.App. at 248) the court concluded that no serious detriment to the plaintiff would result from its refusal to enforce the contract with the defendant.
It was surmised that perhaps the plaintiff had sold his property in New York at a profit and that possibly he preferred to live among the ranks of the unemployed in Los Angeles. Directly contrary to that decision on substantially similar facts is Kaye v. Melzer, 87 Cal.App.2d 299 [197 P.2d 50].
Even if it be assumed that the result reached in the Standing case was proper on the ground that sufficient facts had not been set forth with regard to the New York employment which had been given up, the complaint in the present case is not deficient in that respect. As stated above, plaintiff alleged that he had been continuously employed for 19 years in his previous position with the 834 South Broadway Building and that this employment was to continue at least indefinitely.
Murdock v. Swanson, supra, was an action upon an oral contract to make a will. The complaint alleged that the plaintiff had sold her business in order to devote her time to performing services for the decedent. In holding that facts were not alleged which indicated that a serious change of position had taken place, it was said that the allegation with regard to the plaintiff having sold her business was insufficient because it was not asserted that the decedent requested or knew of the sale. (But see Wilk v. Vencill, 30 Cal.2d 104, 108 [180 P.2d 351], where this requirement is repudiated; see, also, Tuck v. Gudnason, 11 Cal.App.2d 626 [54 P.2d 88].) Again, even if the Murdock case merits approval on its facts, it furnishes no precedent for the present case. It is alleged here in considerable detail that plaintiff gave up his prior employment at the request of defendant.
The fact that plaintiff’s employment agreement with Weinraub may have been terminable at will does not compel the conclusion that he will not suffer serious detriment if his contract with defendant is not enforced. In the first place, it is, I submit, a matter of common knowledge that one who has been employed in the same position for a number of years has performed satisfactory services, enjoys the good will of his employer, and will not ordinarily be discharged without good cause. In this respect plaintiff’s change of position was [693]not materially different from that involved in Seymour v. Oelrichs, 156 Cal. 782 [106 P. 88, 134 Am.St.Rep. 154]. While plaintiff’s rights under his contract of employment with Weinraub may not have been as definitely defined as those fixed by the former contract of the plaintiff in the Seymour case, yet in a very real sense plaintiff has given up substantially the same thing.
The decisions holding that an action to recover damages may be predicated upon an intentional and unjustifiable interference with a contract terminable at will (Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d 34, 39-40, and cases cited; Romano v. Wilbur Ellis & Co., 82 Cal.App.2d 670, 673 [186 P.2d 1012]; see Prosser, Torts, pp. 981-982) indicate that the loss of such a contract does involve a serious detriment. Particularly is this true with respect to employment contracts—the means by which the great majority of people earn a living. Thus, the severe individual hardships resulting from unemployment and the national problems thereby created were recognized by Congress in enacting the Social Security Act of 1935. (Steward Machine Co. v. Davis, 301 U.S. 548, 586-587 [57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293].) That the giving up of employment of long duration, as is here alleged, is not a matter of great importance to the employee, and a serious change of position on his part, is, in my opinion, a highly unrealistic conclusion.
The majority opinion cites Wilk v. Vencill, 30 Cal.2d 104 [180 P.2d 351], as an example of the showing necessary to establish an estoppel to rely upon the statute of frauds. The only substantial change of position there was that the plaintiff gave up an opportunity to purchase another house in the neighborhood in reliance upon the defendant wife’s oral consent to an agreement to sell the defendants’ house to the plaintiff, it being alleged that there were no other houses available in the vicinity. If such a comparatively slight inconvenience or the mere loss of a desirable opportunity, rather than the termination of an agreement relating to one’s very means of livelihood, is the proper test of unconscionable injury, then plaintiff has also brought himself within that rule. The complaint alleges that plaintiff informed defendant in September, 1945, that he planned to remain on his job at the 834 South Broadway Building for another five years, at which ¡time- he expected to retire; “that the defendant then stated to the plaintiff that if he desired to work for five years only that would be agreeable to her and that if he would accept the [694]position (with defendant) they could both retire at the end of five years.” From the additional allegations that plaintiff resigned his position with Weinraub and accepted defendant’s offer and that plaintiff was discharged by defendant in February, 1948, it is evident that Ruinello’s plan to retire in 1950 has been frustrated if the oral contract with defendant is not to be enforced, just as the desire of the plaintiff Wilk to acquire a home in one neighborhood would have been frustrated if his oral agreement had not been enforced.
In my opinion the change of position alleged here is at least as serious as those involved in Wilk v. Vencill, supra, Vierra v. Pereira, 12 Cal.2d 629 [86 P.2d 816], Wilson v. Bailey, 8 Cal.2d 416 [65 P.2d 770], Frey v. Corbin, 84 Cal. App.2d 536 [191 P.2d 21], Beverly Hills Nat. Bank v. Seres, 76 Cal.App.2d 255 [172 P.2d 894], and Holstrom, v. Mullen, 84 Cal.App. 1 [257 P. 545].
I would, therefore, reverse the judgment.
Appellant’s petition for a rehearing was denied March 8, 1951.. Carter, J., voted for a rehearing.