241 Pa. 297 | Pa. | 1913
Opinion by
The controversy here arises out of a contract of employment. The plaintiff in the bill, a carpenter, engaged to give to the defendant, whose business was that of contractor and builder, his entire services in connection with the defendant’s business operations for the term of one year from 1st January, 1902. The material parts of the contract with respect to the questions involved, are as follows:
“It is hereby further agreed......that the said party of the first part (the defendant) shall pay to the said party of the second part (the plaintiff) the sum of $40 per week from March 1,1902, as wages, and in addition*299 thereto, as wages, shall pay to the said party of the second part ten per cent, of the net profits realized during the term of the employment, on all building contracts that may be entered into by the said party of the first part from the first day of January, 1902, including therein the contract upon a certain church building known as the Third Presbyterian Church of Pittsburgh, Pa., entered into prior to that date, but now being completed by the said party of the first part; it being distinctly understood between the parties hereto that the payment of the foregoing ten per cent, of profits by (to) the said party of the second part is to be as wages, in addition to the above-mentioned sum of $40 per week, and is in no way or in any manner or form whatsoever to be construed as entitling the said party of the second part to any interest in the said business or profits thereof, and the said ten per cent, is to be ten per cent, of the net profits after charging against his building contracts the costs and expenses that the said party of the first part incurs in the expense of carrying on his said business.” '
By the clause next following it was provided that at the pleasure of the party of the first part the employment might continue for another year, and so on from year to year until either party should give to the other, three months’ notice prior to the 31st of December of the current year of his intention then to terminate it. It is there further provided that the ten per cent, of the net profits is to be calculated and ascertained on or about the 31st day of December, no uncompleted building, however, to be considered in any way whatever in the ascertainment of profits for the year until the contract for the same shall have been fully completed and ended.
The plaintiff’s employment by the defendant continued from 1st January, 1902, until 31st December, 1905, when it terminated. The bill was filed for an account of the profits made during the entire period of
Another contention is that, conceding the contract to be severable in years, the defendant under its terms was not chargeable with profits in any year except such, as were actually received by him during the year, notwithstanding the work had been physically completed within the year; that all profits were to be reckoned as of the year when payment was made for the completed structures. Among the contracts were those of St. James’ Memorial Church and Sacred Heart Convent
“The said ten per cent, of the net profits is to be calculated or ascertained on or about the 31st day of December but it is distinctly understood between the parties that no uncompleted building contract is to be considered in any way whatever in ascertainment of the profits for the year until said running contract is fully completed and ended.”
It is too plain for argument that what is here meant by “uncompleted building contract” is uncompleted structure, the subject of the building contract. When such structure was completed and accepted the contract of the builder was fully performed and his obligations thereunder had ceased. As to him it was no longer an uncompleted building contract, and the defendant stood in contract relation with him only. The difference between the cost to the defendant and the contract price was then determined. By whatever sum the cost to the builder was exceeded by the contract price, so much was profit, and the plaintiff’s percentage as wages was then due. Seeing that the contract expressly excluded the ¡plaintiff from any participation in the manage
At the close of the year 1905 there were certain outstanding uncompleted building contracts, some seven or more. None of these, when completed, showed profits. The aggregate loss, according to the referee’s findings was $33,919.78. Appellant, carrying over to the year 1906 unpaid profits earned in 1905 would deduct from this sum the losses suffered in 1905 and allow the plaintiff his percentage based on the difference. This method involves two errors. The first is that we have just referred to. The profits earned in 1905, whether actually paid to the plaintiff or not, were properly included in the reckoning of that year; the second is in making plaintiff’s compensation depend on the net results of the business operations for 1906. The plaintiff’s reply to this is that he entered into no such contract. The contract expressly negatives any part
“If, at the termination of this contract by either of the parties hereto, a building contract is uncompleted and profits derived from such contract are to be apportioned in accordance with the total time it took for the completion of the contract and such proportion as wou'd be due for the time that the building contract was running during the employment of the said party of tie second part, is to be considered a part of the profits of such building contract, upon which is to be rated the ten per cent.”
Ir neither provision is there a suggestion that plaintiff was to bear any part of the burden where the contrae; resulted in loss. He was simply an employee entitle I to receive “as wages” $40 per week and ten per cent of the profit on any contract which yielded profit; if no profit was realized, as to such contract, the only return he was entitled to for his labor expended in connection therewith, was his weekly wage. The referee’s computation for the years 1904 and 1905 dealt with each year’s net result, deducting from aggregate profits aggregate losses in each year’s contracts and allowing the plaintiff his ten per cent, on the difference, which was simply finding the percentage on contracts showing profits. But manifestly the contract gives no warrant for applying such rules to constructions completed after the term of employment had expired. As to these, plaintiff’s compensation, where profit was earned, was