Allen v. Chicago Pneumatic Tool Co.

| Mass. | May 18, 1910

Hammond, J.

The main questions are first what was the nature of the contract under which Hammack, the plaintiff’s assignor, was at work at the time he received notice of his dismissal, and second, what was the nature of the assignment.

1. The only written contract was that of February 15,1906. By this contract the defendant agreed to employ Hammack, the plaintiff’s assignor, for a period of one year from its date, and to pay him as salary $2,100 “ per year ” payable in equal monthly instalments at the end of each month, and also to pay him a certain commission upon certain sales, “ this commission to be paid quarterly, payable on the 20th day of the month succeeding the end of each quarter.” It is further provided that if this commission does not amount “ to a net total of fourteen hundred dollars ($1400) for the year,” then the defendant is “to make good such deficiency ” to Hammack, “ payable in cash at the end of the year.” .The last paragraph is in the following language: “It is further agreed that in the event that either or both parties do not desire to renew this agreement at the time of its expiration that notice be given in writing of intention not to renew at least thirty (30) days prior to the expiration of this agreement.” In short, this was a contract for one year from its date, at a yearly salary of $2,100, with an additional compensation of at least $1,400 as -commissions for the year, with a provision that if either or both parties did not desire to renew it notice should be given thirty days before its expiration.

Hammack worked under the contract for the year. No notice of a desire not to renew was given by either party, and Ham-mack, after the expiration of the year, continued his work as before until October 30, 1907, when he was notified by the defendant that on account of financial conditions and the great decrease in business there would be a “ discontinuance ” of employment as to him on the next day. Thereupon letters passed between him and the defendant as to this matter, the former insisting that his contract was in force until February 15, 1908, and the latter that the contract had terminated on February 15, 1907. From the fact that no notice was given before the expiration of the first year the trial judge had the right to infer that there was a disposition to renew the contract, and from the additional fact that Hammack without any other express arrangement, either written or oral, continued to work as before, with the full knowledge and approbation of the defendant, the judge could properly infer that it was the understanding of the parties that the contract was renewed. If renewed, then the new contract, like the old, was a contract of hiring for a year, with compensation for the year, to be paid quarterly as before, with the same right in either party to give notice within thirty days of its expiration that there was no further desire for renewal. Any other contract would not have been a “ renewal ” of the original contract. The evidence amply justified a finding that at the time the plaintiff was dismissed he was working under a contract for the year beginning February 15, 1907. Dunton v. Derby Desk Co. 186 Mass. 35" court="Mass." date_filed="1904-05-20" href="https://app.midpage.ai/document/dunton-v-derby-desk-co-6428566?utm_source=webapp" opinion_id="6428566">186 Mass. 35, and cases cited. Maynard v. Royal Worcester Corset Co. 200 Mass. 1" court="Mass." date_filed="1908-10-20" href="https://app.midpage.ai/document/maynard-v-royal-worcester-corset-co-6430390?utm_source=webapp" opinion_id="6430390">200 Mass. 1. In this last ease there is a quite full discussion of the law bearing upon this subject, and we need only to refer to it for a statement of the underlying principles.

2. What is the nature of the assignment from Hammack to the plaintiff ? It is dated January 4, 1908, which was some weeks before the expiration of the second year. At that time there was due to Hammack all arrears of salary and of commissions up to that time, and the second contract was still binding upon the defendant. Upon the breach of the contract by the defendant there were before Hammack at least two courses. He either could regard the contract as broken and at once sue for damages for the breach, or he could hold himself out as ready to work under it, wait until the expiration of the year and then sue for compensation as fixed by the contract less reasonable deduction of what he could have earned. There was evidence that he intended to take the latter course, for he notified the defendant that he held himself subject to their working orders up to February 15,1908. And although he testified that he endeavored to seek other employment, yet the trial judge could well find upon the evidence that he intended to hold the defendant as liable for the compensation by the terms of the contract, and not merely to sue thereon in damages for the breach.

Under these circumstances the assignment was made. It covers “ all claim which I now have or may hereafter have against . . . [the defendant] . . . due me for services and commission as salesman . . . whether such claim for services and commissions have accrued, or may hereafter accrue under a certain written agreement made by me with said Company dated February 15, 1906, or under any oral renewal thereof.” It does not purport to be an assignment of a claim for damages for breach of the contract. In a word it was simply an assignment of all sums then due under both contracts with whatever afterwards should become due for services and commissions (which were in the nature of future earnings) under the renewal contract which was then existing. Such an assignment is valid according to its terms. Citizens Loan Association v. Boston & Maine Railroad, 196 Mass. 528" court="Mass." date_filed="1907-11-26" href="https://app.midpage.ai/document/citizens-loan-assn-v-boston--maine-railroad-6430025?utm_source=webapp" opinion_id="6430025">196 Mass. 528, and cases cited. It is to be noted also that the declaration in this case proceeds upon this theory as to the nature of the assignment. It makes no claim except under the terms of the contract. The assignment of the sums due for services and commissions must be held to include also interest accrued or to accrue. It follows that the rulings requested were all properly refused.

Exceptions overruled.