28 Del. 233 | Del. Super. Ct. | 1914
charging the jury:
It is claimed by the plaintiff and admitted by the defendants that the following contract under seal was entered into by the parties to the present action.
“Articles of agreement, made this twelfth day of April, A. D. 1913, between Manuel Cohen and Isaac B. Finkelstein, both of the City of Wilmington and State of Delaware, merchants and co-partners under the firm name and style of Cohen and Finkelstein, of the one part, and William F. Carroll, of the City of Philadelphia and State of Pennsylvania, of the other part. The said parties mutually agree as follows:
“1. The said William" F. Carroll shall enter into the service of the said Cohen and Finkelstein as the manager of the retail department of the business of Cohen and Finkelstein as merchants at their place of business, Nos. 228 and 230 Market Street, City of Wilmington, Delaware, for the period of one year from the fourteenth day of April, 1913, subject to the general control of said Cohen and Finkelstein.
“2. The said William F. Carroll shall devote the whole of his time, attention and energies to the performance of his duties as such manager of said retail department, and shall not, either directly or indirectly, alone or in partnership, be connected with or concerned in any other business or pursuit whatsoever during the said term of one year.
“3. The said William F. Carroll shall, subject to the control of the said firm of Cohen and Finkelstein, take entire charge of the retail department of the business of said Cohen and Finkelstein herein mentioned, he shall exercise supervision over the whole of the said retail department of said business, shall employ such help as may be necessary and desirable, shall serve said firm diligently and according to his best abilities in all respects, and shall generally do all things for the best interest of said firm that are usually done by persons occupying such position as manager.
“4. The salary of the said William F. Carroll shall be the sum of thirty dollars @30) per week for the first six months, payable by the said firm weekly from the commencement of the said service, and thirty-five dollars @35) per week for the second six months, payable weekly in like manner from the commencement of such second six months: Provided however, that if the services of the said William F. Carroll shall be found to be entirely satisfactory to the said firm of Cohen and Finkelstein, the said William F. Carroll shall be paid for his services at the rate of forty dollars @40) per week for the second six months of the term of one year, herein mentioned.
“5. If the said William F. Carroll shall be neglectful of the interest of the said, firm of Cohen and Finkelstein or shall manage the business under . his supervision badly or in an improper way, or shall misconduct himself, the said Cohen and Finkelstein may at their option terminate this agreement, and such service as manager upon two weeks’ notice to the said William F. Carroll; and, further provided, that the said William F. Carroll may terminate his service upon two weeks’ notice to the said Cohen and Finkelstein.”
There is no contention that the contract was induced by fraud of either party.
The plaintiff claims pursuant to the terms of the contract he entered the employ of the defendant firm on April 21, 1913, as ■ manager of the retail department of their business, and on the eighteenth day of August the same year he was dismissed by the firm, and thereafter prevented from performing his contractual duties. These facts are admitted by the defendants.
The further claim is made by the plaintiff that he faithfully, fully and in a competent manner performed all his covenants contained in the contract of employment, and that his dismissal was without justification or legal reason on the part of the defendants, and by the defendants’ action he suffered damages in an amount equal to his wages for the unexpired term of the contract, less such amounts as he was reasonably able to earn, during that time. In support of his claim for damages the plaintiff testified that he earned fifteen dollars a week from September seventeenth to October twenty-sixth and from November tenth to the present time he earned sixty-two dollars a month.
The defendants dispute these claims of the plaintiff, and contend that William F. Carroll, the plaintiff, did not perform his duties as manager in a competent manner, and he failed to efficiently do those things usually done by persons occupying such position as manager, and generally his conduct of the business was of such a nature that it amounted to a breach, on his part, of the provisions of the contract, also that he misconducted himself, and therefore they were justified in dismissing the plaintiff from their employ and thereafter discontinuing his services.
The defendants also contend that under the terms of the contract they were the exclusive and final judges of the efficiency of the plaintiff and the satisfactory nature of the work performed by him in their services, and whether they should continue him in their employ was optional with the defendants.
The contract was for a period of one year from the fourteenth day of April, 1913, and for the first six months the plaintiff was to receive a certain weekly wage and for the second six months the amount of his wages was to be increased. In this connection we will say to you that the first six months of employment ended on the thirteenth day of October, the same year, and the second six months ended on the thirteenth day of April, the year following.
On the other hand, mistakes made by plaintiff in the performance of his duties, of a nature that would substantially affect the business of the defendant, is evidence to justify the dismissal of the plaintiff by the defendants. However, the plaintiff neither insured nor guaranteed the results of his work as manager of the business.
If you find for the defendants, your verdict should be simply for the defendants.
Verdict for plaintiff.