Hughes v. Gross
43 N.E. 1031
Mass.
1896
Check Treatment
Holmes, J.

This is an action of contract, for refusing to employ the plaintiff a second year. The plaintiff had a verdict, and the case is here on exceptions. The original contract was *65in writing, and was made with two partners, Gross and Strauss, for one year from April 25,1892, with a conditional right of renewal on the side of the plaintiff for one year more. On November 1, 1892, during the first year of the plaintiff’s employment, Strauss died, and the business was carried on by Gross. The first question raised by the exceptions is whether Strauss’s death ended the contract. At the end of December the plaintiff received a notice from Gross that she would not be employed beyond the first year, stating causes of dissatisfaction. There was an answer from the plaintiff, and a reply by Gross. Exceptions were taken to the admission of the plaintiff’s letter in evidence, and to the exclusion of evidence of other causes of dissatisfaction beside those mentioned in the notice.

On February 1,1893, the defendant Sommer became a partner in the business with Gross, the new firm taking the assets and assuming the liabilities of the old one. Thereafter the plaintiff was paid out of the funds of the new firm, and, according to the plaintiff’s testimony, was referred to Sommer for further discussion of her relations with the firm, and had several interviews with him, in which he wanted to terminate the contract. Another exception is to the refusal to direct a verdict for Sommer.

We are of opinion that it could not be ruled, as matter of law, that the contract of service was dissolved by the death of a partner. We have no occasion to criticise the decisions in some of our States and in England and Scotland, where an opposite result was reached by a majority of the judges with reference to different kinds of business from the present, except to remark that the argument put forward in Scotland and elsewhere that the only contracting party was the firm, and that the firm had ceased to exist, does not agree with the common law. Tasker v. Shepherd, 6 H. & N. 575. Hoey v. MacEwan, 5 Ct. of Sess. (3d ser.) 814, 815. Griggs v. Swift, 82 Ga. 392. Greenburg v. Early, 30 Abb. N. G. 300, 303. The common law does not know the firm as an entity. Hallowell v. Blackstone National Bank, 154 Mass. 359, 363. A contract with a firm is a contract with the members who compose it. A joint contract to employ the plaintiff is not ended necessarily by the death of. one of the contractors. Martin v. Hunt, 1 Allen, 418. And there is no universal necessity that death should have a greater effect when the joint *66contractors are partners. Fereira v. Sayres, 5 W. & S. 210. If the death naturally would put an end to the business, as it so frequently does, very possibly it might end the employment. We have no need to consider what would be the result if in fact no further business was done except to wind up the affairs of the firm, as was the case in Griggs v. Swift, ubi supra. But this business went on without a break, and both parties seemed to have assumed that the plaintiff’s contract was not ended by the death of Strauss.

But the foregoing suggestions are not enough to lay a foundation for the liability of Sommer, even assuming that there was evidence warranting the inference that he was content to be bound unless Gross escaped, and that he made an oral contract on the terms of the written agreement. The declaration is on the written instrument, and the refusal to direct a verdict for Sommer must be taken as made either with reference to the pleadings, in which case Sommer must be shown to be a party to the instrument, or else on the evidence, irrespective of the pleadings, in which case, unless he is to be taken to have signed the writing, the statute of frauds would be a defence under our decisions. Hill v. Hooper, 1 Gray, 131. Freeman v. Foss, 145 Mass. 361. It appears to us that this difficulty cannot be answered except by attributing an over subtle meaning to the firm signature and to the acts of the new partners. We cannot read “ Gross and Strauss ” as not only meaning all those who then were members of the firm, but also as purporting to name in advance all persons who might become members pending the contract. It follows that a verdict for Sommer should have-been directed. But there seems to be no reason why the Superior Court, if it sees fit, should not allow the plaintiff to discontinue as against Sommer and to take a judgment against the other defendant, Gross. Ridley v. Knox, 138 Mass. 83, 86. Fifty Associates v. Howland, 5 Cush. 214.

The plaintiff’s letter answering the reasons for dissatisfaction given in the notice that she would not be employed beyond the year, was admitted only for what light it might throw on the defendants’ reply and subsequent conduct, not as evidence of admissions by the defendants, as in Sturtevant v. Wallack, 141 Mass. 119. The defendants’- reply -excluded any admission., *67Limited as it was limited, the evidence was not improper, and can have done no harm, although not very instructive.

We assume that the plaintiff might have been discharged for any just cause during her employment. But the refusal to embark upon a second year was placed by the contract upon a special ground, and was restricted more than the implied right to discharge for cause. The refusal to go on a second year could be justified only by “ written notice ... of any cause of dissatisfaction on or before January 1, 1898.” “Any cause” plainly means “ any existing cause,” or “ any cause relied on.” The defendants, therefore, could not be allowed to prove other causes. The exceptions do not show that they offered to prove other causes arising after January 1,1893, as distinct from other causes coexisting with those alleged in their notice. But we are not prepared to say that the contract would allow a refusal to begin the second year for causes arising between January 1 and April 21, 1893. Exceptions sustained.