This сase was heard before a judge of the Superior Court with a jury and at the close of the testimony, by agreement of counsel, the judge dirеcted a verdict for the plaintiff on two items for $626 with interest from the date of the verdict, upon the following written stipulation' of counsel: “This cаse is to be reported on the agreement that if there was evidence on which the jury could find for the plaintiff on Item 1 then judgment is to be entered for the plaintiff in the amount of Item 1 with interest from the date of the verdict; and if there was evidence on which the jury could find for the plaintiff on Item 2 then judgment is to be entered for the plaintiff in the amount of Item 2 with interest from the date of the verdict. Otherwise, judgment for the defendant.”
In 1919 the plaintiff entered the employment of the defendant as a dental hygienist at a salary of $20 a week. About a year and a half later it was incrеased to $21 a week. Shortly after she went to work she was given a booklet issued by the defendant entitled “Log of the Crew,” which contained a statement of a profit sharing or deferred salary plan. The material portions are set forth in the report, including the following: “Babson’s Salаries for 1923. This plan applies only to the Babson Statistical Organization, and not to the Babson Institute, or the Babson Park .... The employees who have been with the Babson Statistical Organization two full calendar years, in addition to their fixed salaries, may receive one or morе additional payments which shall be charged to the salary account .... If any question arises as to the interpretation or appliсation of any feature of the Plan,, the decision of the President shall be final.”
The plaintiff testified that she read and understood these prоvisions and did not object to them. She remained in the defendant’s employ until October 11, 1923, when she was discharged by its president. During the time she was so employed she received her weekly salary. This action
The contract between the parties was valid and could not be avoided by the plaintiff’s discharge; as she had not been emрloyed for a definite time, she could lawfully be discharged at any time. Scott v. J. F. Duthie & Co.
The plaintiff testified that, after her discharge, shе had an interview with Babson, the defendant’s president, who then told her she was not entitled to any deferred salary and that he “was going to pay his mоney as he saw fit.” It is the contention of the defendant that the clause in the plan which reads “If any question arises as to the -interpretatiоn or application of any feature of the Plan, the decision of the President shall be final” is a bar to recovery. If it be assumed that this clause constitutes the president a quasi arbitrator within the rule applied in Palmer v. Clark,
It is a general rule that an agreement purporting to oust the courts entirely of their jurisdiction is void. Rowe v. Williams,
The agreement in the present case is nоt like a building contract in which the decision of an architect or engineer respecting the quantity or quality of the work done is a condition precedent to the plaintiff’s maintaining an action
If the phrase of the plan can be considered as an agreement for аrbitration, it cannot be presumed that the parties intended to make such an arbitration a condition precedent to a right of the plaintiff to bring an action for the deferred salary. The defendant’s president, it may reasonably be inferred, was vitally interested in the decision оf the question involved. It could have been found that he was prejudiced against the allowance of the plaintiff’s claim and could not аct disinterestedly; that he was not in a position to render a fair and impartial decision. In the interest of manifest justice the plaintiff was not bоund by such an arbitration. As was said in Brocklehurst & Potter Co. v. Marsch,
It is plain that, if the clause in question is an agreement for arbitration, it is invalid. Hawkins v. Graham,
The provision in the “Log of the Crew” that “Anyone leaving the employ of the Organization between December 31, 1922, and December 31, 1923, . . . shall forfeit all claim to any of the above funds” has no appliсation to the plaintiff who was discharged in October, 1923. It follows
The question remains, whether the jury would have been warranted in finding for the plaintiff on the first item of the verdict for deferred salary for the year 1922. During this year she knew that she was devoting a portion of her time to work on the teeth of students of the Babson Institute, an organization separаte from that of the defendant. The plan expressly recites that the profit sharing part of it applies only to the Babson Statistical Organization and not to the Babson Institute or the Babson Park Company. She testified that the only calendar year for which she had received deferred salary was 1922 and that in 1923 she was paid two thirds of that salary. She knew that one third of her weekly salary had been paid to her during 1922 by the Babson Institutе, and it had amounted to $390. She also testified that in 1923 Larson, the assistant cashier of the defendant, gave her a card with figures on it and explained to her that she would receive deferred salary on only two thirds of her pay because one third of it came from the Babson Institute and that no deferred salary would be paid on it. She then accepted the deferred salary on two thirds of the weekly salary without objection.
The plaintiff is not entitled to recover on the one third of her salary paid in 1922 by the Babson Institute. To hold otherwise would be contrary to the express terms of the plan.
It follows that in accordance with the terms of the report judgment is to be entered for the plaintiff under Item 2 for $427.86 with interest thereon from the date of the verdict.
So ordered.