Kirkley v. F. H. Roberts Co., 268 Mass. 246

Kirkley v. F. H. Roberts Co.

268 Mass. 246 | Mass. | 1929

Wait, J.

The plaintiff sues at law for breaches of an agreement in writing which bears date January 28, 1905. The first count seeks recovery of damages for wrongful termination of the contract. The second seeks damages for breaches occurring during the life of the contract. The case is before us upon two bills of exceptions taken by the defendant; one for alleged errors relating to the first count, the other for alleged errors arising in the course of a second trial on the second count. In both, the defendant contends that *251erroneous rulings were made relating to evidence, and that requests for rulings and motions for directed verdicts were denied wrongfully. No exception is claimed to the instructions given to the juries.

The contract was made between the plaintiff and F. H. Roberts Company, a Massachusetts corporation which was reorganized in 1908 and in 1911; but no contention is made that the later corporation is not hable if the original corporation would have been. The material provisions of the contract are as follows: “[F. H. Roberts Company] promises and agrees to employ said Kirkley, ... as its sales agent and to retain him in its employ as long as he shall faithfully and diligently perform the duties of his employment, said . . . [Barkley] ... to sell upon a commission basis of ten per cent on all sales made by him or otherwise obtained in his exclusive territory, which territory of his, as defined, shall be such territory as he, said . . . [Kirkley] . . . , shall acquire by his personal effort and diligence and which shall not conflict with other territory belong [[sic] to, or obtained by other agents of said . . . [F. H. Roberts Company] . . . ; payments by said . . . [F. H. Roberts Company] ... to said . . . [Kirkley] ... to be made monthly beginning March first of the current year. And said . . . [Kirkley] ... on the other hand promises and agrees that he will enter the employ of said . . . [F. H. Roberts Company] ... as commission sales agent and will faithfully and diligently perform the duties of his employment, and he further promises and agrees to give his sole and undivided attention thereto as long as this contract shall continue.” At the time it was executed, the plaintiff was employed in Pennsylvania and New Jersey by third parties, and the company was seeking to extend its business beyond New England except Rhode Island, and part of New York State where one other sales agent was at work. The plaintiff, considering whether to leave his then employer and throw in his lot with the company, was promised a written contract if he would go with the company. He decided so to do, and received this written agreement. Here was sufficient consideration for the promise of employment. Revere v. Boston Copper Co. 15 *252Pick.1 351. Carnig v. Carr, 167 Mass. 544. The contract is not too indefinite. The nature of the work, and the compensation to be paid are precise. The territory to become exclusively his depends upon future action; but a contract is not necessarily incomplete because some of its terms must be fixed at a future time or by subsequent events. Evers v. Gilfoil, 247 Mass. 219. Speirs v. Union Drop Forge Co. 174 Mass. 175. Silver v. Graves, 210 Mass. 26. Williams v. Knibbs, 213 Mass. 534. The duration of the employment is stated to be “as long as he shall faithfully and diligently perform the duties of his employment.” There is no promise on the commission agent’s part to remain with the company for any definite time. This does not invalidate the contract, nor, of itself, make it terminable at the will of the company. Whatever may be the law elsewhere, it is settled by the decisions already cited, Revere v. Boston Copper Co., supra, and Carnig v. Carr, supra, that here a contract in the terms of the one before us is binding upon the company so long as the agent faithfully and diligently performs and is willing and able to perform the prescribed duties at the compensation fixed. Daniell v. Boston & Maine Railroad, 184 Mass. 337. Elwell v. State Mutual Life Assurance Co. 230 Mass. 248. Edmund D. Hewins, Inc. v. Marlboro Cotton Mills, 242 Mass. 282. Proctor v. Union Coal Co. 243 Mass. 428. We see nothing in Emerson v. Ackerman, 233 Mass. 249, cited by the defendant, which is to the contrary. Pierce v. Tennessee Coal, Iron & Railroad Co. 173 U. S. 1. The judge could not properly, therefore, direct verdicts for the defendant on the ground that no binding contract existed, or that it was terminable at the will of the company.

The defendant further contends that the contract had been so modified that it had ceased to exist. The case differs from Rosenfeld v. Standard Bottling & Extracts Co. 232 Mass. 239, in which all the terms of the original contract had been superseded. Here there was evidence of dealings between the parties which could be found to have fixed the territory exclusive to the plaintiff, to have modified in part the commission payable upon certain orders within the territory, and, possibly, to have modified the method of making sales by the *253plaintiff; but the relations of the parties, in the main, were those laid down in the written contract. It could still be looked to for the determination of their respective rights. The judge could not rule, as matter of law, that such modifications as could be found to exist were so material and so extensive that the original contract had disappeared. We see no error in the denials of the motions to direct verdicts for the defendant.

Nor do we find reversible error in the refusals to instruct the jury as requested at the first trial with reference to the first count. What has been said disposes of the rulings asked as law in the seventh, eighth, tenth and twelfth requests. The ninth request relates to matter of fact, and was covered by the charge so far as matter of law is concerned. The eleventh request was not given. We have no doubt that the defendant as incident to the management of its business had the right to control to some extent the territory which the plaintiff could enter upon; but the request is so limited in its language that the judge was not in error in refusing to give it. We cannot see any prejudice to the defendant from the refusal, in the state of the evidence. Whether the control that the defendant sought to exert, and whether its conduct in placing an agent in western Pennsylvania, which might well be found to have been exclusive territory of the plaintiff, were justifiable under the contract involved fact as well as law. The subject matter was dealt-with in the charge, and no exception was claimed to what was said. There was evidence that after instructions by the defendant to keep away from western Pennsylvania, the plaintiff visited Altoona, a town forbidden to him. This action may well be found to have been an assertion of right under the contract and not unfaithful conduct. If the defendant wished to have the jury instructed with reference to this matter the eleventh request was inadequate.

The defendant contends that there was error in the denial of the motion for a directed verdict in its favor at the second trial on the second count, because, even if the contract was valid, the plaintiff could not recover items which he sought. Whether the plaintiff could recover for commissions on sales *254in southern New Jersey, for deduction made on account of transportation charged, for alleged deductions due to adding taxes to the prices charged to customers, for reduced commissions on sales of certain goods, and commissions for sales made in 1923 by an agent sent, as he claimed wrongfully, into western Pennsylvania, depended on questions of mixed law and fact. Whether in accepting commissions on sales made in Baltimore and Washington, the plaintiff assented to modification of his exclusive territory or waived his right to insist upon the contract was, in the condition of the evidence, fairly question of fact for the jury. The judge could not properly grant this motion so long as there were controverted issues of fact which must be determined before the rule of law applicable in the circumstances could be ascertained. There is no validity in this contention.

The defendant properly waived many of the exceptions to rulings upon evidence. We find no error in those now insisted upon. The telegrams from Cummings to the defendant were relevant to the issue of the sending of Cummings into territory claimed by the plaintiff; what was said at the.conference in New York between the parties was clearly competent; the plaintiff’s opinion on the lines of high priced goods comparable with Apollo products was relevant on the issue of his conduct after the discharge by the defendant in endeavoring to obtain another employment; and whether or not what was said in July, 1923, was protected as propositions for compromise was question of fact for the judge, whose decision we cannot say was clearly wrong. Although rulings to the contrary might have been proper in the discretion of the trial judge, we are unable to find that the defendant has suffered from the rulings made, or to believe that the evidence admitted affected the result of the trial.

Exceptions overruled.