100 Mich. 448 | Mich. | 1894
The petitioner was for several years in the-employ of the George T. Smith Middlings Purifier Company as its general collecting agent. He had a written contract during the year 1.883, which was renewed in 1884. He continued in the same employment under the terms of the written contract uuti.1 he was discharged, in January, 1887. February 11, of that year, he commenced an action at law in the circuit court for Jackson county. The declaration ivas on the common counts. A bill of particulars was filed, the items of which are substantially as follows:
For salary as agent for one year.................$5,500 00
For the value of the use of an invention by plaintiff of a tilting cup used by the defendant in 1883 and 1884__________________-......... — . 1,000 00
For commissions earned from Nordyke & Harmon, and claimed to have been collected by the purifier company............................. 768 80
For expenses and disbursements as agent........ 4,330 74
For interest on annual balances of salary not drawn 1,500 00
To this declaration a plea of the general issue, with notice of set-off, was interposed. The items of the set-off were as follows:
Balance of account against plaintiff..............$5,618 15
Moneys drawn by plaintiff from Hr. Kreiss, of Germany, a customer of the defendant------- 1,081 44
Moneys drawn by plaintiff while managing defendant’s business in Canada.........'............. 1,787 41
January 14, 1890, the purifier company made a common-law assignment for the benefit of its creditors. April 15, 1890, the cause was removed from the circuit court for the county of Jackson to the circuit court for the county of Wayne, in chancery. ■ At the time of this assignment the chancery suit between the purifier company and Clark was undetermined. It was stipulated between the respective parties that the cause should proceed to a final hearing upon the merits, and a final decree be entered. The hearing was concluded, and a decree entered February 29, 1892, in favor of Clark, and against the purifier compan3r, for $4,222.30. This decree also recited that this indebtedness was on account of personal labor and services of said defendant rendered to said complainant; that said complainant had made a voluntary assignment for the benefit of its creditors; and decreed that the amount be given preference in the winding up of the affairs.of said complainant under the statute. No appeal was taken from that decree. Mr. Clark then filed his petition in the circuit court for the county of Wayne, in chancery, in the assignment case, asking that the receivers be decreed to pay
It is insisted on behalf of the petitioner (1) that the question of preference is res judicata by the decree in the Jackson circuit court; and (2), if this be not so, still the claim is one entitled to preference, under Act No. 94, Laws of 1887.
“The party of the second part [Clark] is to actas gen-*452 •feral agent for the said purifier company during the year 1884, at a yearly salary of $4,500, which the party of the first ¡Dart agrees to pay: Provided, however, that, if the gross amount of sales of machines by said purifier company during the- year 1884 is as large as the gross amount of such sales by said company in 1883, then, and in consideration of such sales, the salary of the party of the second part shall be $5,000, instead of $4,500, and the party of the first part agrees to pay the same accordingly.'”'
Under this and similar contracts, Mr. Clark traveled in nearly all of the United States, in Canada, and in Europe. We think it clear that this is not a labor debt, within the statute, which will be found quoted in Black’s Appeal, 83 Mich. 517, Occasionally, Mr. Clark, in the performance of his duty, did some manual work in fixing the machines that had been sold, in operating a new mill, in securing 'its satisfactory running, and in giving instructions to others; but he was not a “laborer,” within the decision of Black's Appeal. Mr. Black was engaged exclusively in putting the machinery in running order after it had been sold. lie had nothing to do with its sale, nor with any collections. His work was entirely manual and mechanical. The manual work -which Mr. Clark performed did not constitute his general employment. His contract did not require the performance of.any such labor as that which is preferred by this statute. In re Sayles’ Petition, 92 Mich. 354.
The decree must be affirmed, with costs.