183 N.E. 191 | NY | 1932
John P. Murphy had for some years, beginning July 1, 1921, been a salesman employed by plaintiff, a manufacturer of ladies' shoes. He was discharged on January 18, 1929. Prior to July 1, 1926, his periodical contracts with the plaintiff had provided that he should be at liberty to sell other commodities and shoes which did not compete with lines manufactured by plaintiff. On May 1, 1926, he entered into a renewal agreement under which he was working at the time of his discharge, by which he agreed for a period of three years from July 1, 1926, to act as salesman and devote his time, attention and efforts to the business of plaintiff, as theretofore. Plaintiff agreed on its part that Murphy should be at liberty to sell other commodities and shoes which did not compete with the lines manufactured by plaintiff. Murphy first took out another line of shoes, known as the Chandler shoe, in June or July, 1928. He thereafter sold Chandler shoes and built up their sales $104,000 in a single year, during which time plaintiff's sales by him fell off $150,000.
On January 18, 1929, Murphy was discharged and on the same day this action was brought against him and the other defendant alleging a conspiracy and asking for an accounting and damages. Murphy's answer was a general denial and counterclaims covering unpaid commissions and damages for wrongful discharge. The trial resulted in a judgment for Murphy for $32,212.70 on such counterclaims.
Finding of Fact No. XXXIII is as follows: "The shoes of the defendant G.W. Chandler Co., Inc. sold by defendant Murphy did not compete with the lines manufactured by the plaintiff." Appellant alleges that this finding was really one of law, and that it was unsupported by the evidence.
There was also a finding that Murphy was wrongfully *103 discharged. This likewise is claimed by appellant to be a conclusion of law.
If the Chandler shoes which Murphy sold were shoes competing with plaintiff's line within the fair intent and meaning of the contract, then Murphy's conduct in selling such shoes was a violation of his contract with plaintiff as matter of law. "What a contract means is a question of law." (Dwight v. GermaniaLife Ins. Co.,
The entire record unmistakably suggests technical and arbitrary distinctions on the part of Murphy to evade his duty to his employer, to be disloyal to it and to promote *105 the sale of the Chandler shoe where otherwise the Elco shoe might have been purchased, rather than that high degree of fidelity to plaintiff which was its due. Even if the two lines were technically non-competitive, Murphy was not loyal to plaintiff when he carried the Chandler shoes as a main line. He had agreed to "devote his time, attention and efforts" as an Elco salesman "as heretofore," when he carried no side line. While he might sell "other commodities and shoes which do not compete," his primary duty was to the Elco Company. The other shoes were to be a side line. He was disloyal to the Elco Company when he devoted his time, attention and efforts, not to plaintiff as theretofore, but also to a large extent to the Chandler Company. As matter of law it cannot be said that plaintiff was required to continue in its employ the services of such an employee. A mere permission to sell non-competing goods did not authorize him to relax his efforts to sell the Elco shoes. It follows that plaintiff was warranted in discharging Murphy.
The judgment of the Appellate Division and that of the Special Term should be reversed. The counterclaims should be dismissed and judgment granted in favor of plaintiff for an accounting in accordance with this opinion (which accounting will include all items for commissions earned and unpaid as set forth in the counterclaims), with costs in all courts to appellant.
CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment accordingly. *106