323 Mass. 91 | Mass. | 1948
The plaintiff sues for breach of a written contract to employ him for two years from June 1, 1944, as manager of a phonograph machine, or “juke box,” business conducted by the defendant under the name of the Ace Amusement Company, and alleges a wrongful discharge on November 19, 1945. The answer, in part, alleges the plaintiff’s wilful and intentional violation of the terms of the contract. There was a verdict for the plaintiff. The defendant’s exceptions are to the denial of his motion for a directed verdict in his favor and to the denial of his motion for a new trial.
The defendant was the owner of a number of phonograph machines in various locations in the city of Worcester and vicinity. Under the contract the plaintiff was “subject to the general control” of the defendant, and his duties included changing records, servicing machines, finding new locations, and making collections. For this the plaintiff was to receive $100 weekly, a commission of five per cent of the gross receipts, and operating and travelling expenses. The defendant was to furnish the plaintiff an automobile for use in business and for the plaintiff’s “personal use as permitted” by the defendant.
The plaintiff performed services under the contract until he received from the defendant a letter, dated November 19, 1945, reading as follows: “Effective today, please leave all keys, records, tubes, tools and other items belonging to Ace Amusement Co. with Mr. A. Morrissette. This note will advise you that you arc no longer connected with this company. You have been notified that your operation was
Whether the defendant was warranted in discharging the plaintiff before the expiration of the term of employment by reason of his conduct was an affirmative defence, the burden of proof of which rested upon the defendant; and, as an affirm.ative defence is commonly a question of fact, it rarely can be ruled as matter of law that it has been sustained. Gold v. Spector, 247 Mass. 110, 111, and cases cited.
The defendant, however, contends that there was error in the denial of his motion for a directed verdict because on the evidence most favorable to the plaintiff the latter was guilty of a wilful and intentional violation of the contract. As a general proposition it may be stated that a party to a contract who intentionally departs from its terms will be denied recovery. Sipley v. Stickney, 190 Mass. 43. Jackson v. Boston Safe Deposit & Trust Co. 310 Mass. 593, 595. Walsh v. Atlantic Research Associates, Inc. 321 Mass. 57, 62. As coming within this proposition, the defendant relies on certain testimony of the plaintiff, who testified that he understood that under the agreement he was to take his orders from the defendant; and that on an unstated date the defendant told the plaintiff that thereafter there was to be no more private use of the defendant’s automobile. The plaintiff answered affirmatively to the tenth interrogatory propounded by the defendant: "During the period while you were in the employ of the defendant, did you use
For another reason it could not have been ruled as matter of law that the defendant was justified in discharging the plaintiff. The defendant testified that two months after
There likewise was no error in the denial of the motion for a new trial. The defendant's argument is confined to one ground, “That the damages awarded to the plaintiff were excessive as a matter of law.” The verdict was in the amount of $2,332, and the defendant, who filed no requests for instructions, contends that the plaintiff by his testimony showed that he had made no effort to secure employment after January 1, 1946. It is unnecessary to detail the facts underlying this contention, because the defendant was not entitled as of right to raise this question on a motion for new trial. It should have been raised not later than at the time the verdicts were returned. Low Supply Co. v. Pappacostopoulous, 283 Mass. 633, 635. Belkus v. Murdoch, 315 Mass. 86, 88. Phillips v. Larson, ante, 87. The judge made .no rulings of law, but merely denied the motion. No abuse of discretion appears. Arena v. John P. Squire Co. 321 Mass. 423, 428-429. We do not intimate that the defendant’s contention is valid on the merits.
Exceptions overruled.