Pontefract's Estate

40 Pa. Super. 262 | Pa. Super. Ct. | 1909

Opinion by

Henderson, J.,

The appellant’s claim is under a contract for services “as a salesman and confidential clerk” in the business then carried on by the first party to the contract. The duration of the service was to be five years subject, however, to be terminated by the death of either party within that period or by the sale or discontinuance by first party of his business. An annual salary of $4,000 was provided for which was to be augmented by a commission equivalent to fifteen per cent of the net profits arising during the term of the appellant’s employment “from the manufacture, sale and storage of whisky in excess of $25,000 per annum.” The profits of the business were to be ascertained annually on July 1. These provisions have reference to a business then in operation and to be carried on prospectively for five years during which time the appellant was to render service in the capacity stated in the contract. His right to compensation would have ceased at the end of five years, and a like result was provided for in case of the death of either party or of the sale of the business. In either event his claim for compensation would wholly cease. The appellant’s obligation was to promote the business of the concern and to extend its trade and as an inducement to activity in that direction his compensation was to be increased in proportion to the success of the enterprise. From the nature of the business and the description of his employment it may be presumed that a principal part of his business was to sell the products of the distillery to its customers. It was evidently not in contemplation by the parties that he was to render any service in selling or discontinuing the business. The provision for annual adjustments of the commissions due shows that the profits to which the parties referred were those arising in the ordinary course of the business as it was carried on. The owner had the undoubted right to exercise a discretion as to the time when he would close out his business and his right so to do is plainly reserved in the agreement. With that sale or discontinuance the appellant had nothing to do, and it is not probable that the contracting parties had in mind the payment of a commission on such a sale for it was the privilege of Pontefract to sell in a week or month after this contract was executed if his advantage or inclination moved him so to do, and it is difficult to believe that he intended to give, or that the appellant expected to receive, a commission on such a sale, for up to that time he would have contributed little or nothing to the success of his employer’s business. It is argued that the transaction was not a sale but a leasing of the property and that the orphans’ court started with a false premise in arguing on the theory of a sale. The contract provides both for a sale and a discontinuance of the business, and it is perhaps not material that it was a sale instead of leasing, but the stipulation of facts states very clearly that the transaction was a sale of the business and a leasing of the real estate. It is referred to as a “ purchase of the business ’ ’ and as “the sale of said business.” It is further recited that the first party leased his distillery property and at the same time sold to the lessees' the personal property used in connection with the business and the entire stock on hand and on August 1, 1905, discontinued the distilling business. Taking the appellant at his own words as expressed in the stipulation of facts the decedent sold his business and the nature of the transaction implies as much. The real estate and trade-marks were leased for twenty years with an option to purchase at a fixed price at the end .of that time. The lessees of the property were engaging in the distilling business in the same premises and intended to use the same trade-mark and manufacture whisky of the same quality as that which had been manufactured by the lessor under his special brand. It became important, therefore, for them to take over with the business the . stock on hand in order that the trade and good will of the distillery might be continued. The transaction was in fact a sale of the business in which the decedent had been engaged, and he thereafter ceased to have anything to do with the manufacture of whisky at that place. As this sale was one not in the line of the appellant’s employment it is a reasonable presumption that it was not the intention of the parties that compensation for sales made and attention to the prosecution of the business should include remuneration for services not in contemplation. The appellant was to be rewarded for increasing the business; not for stopping it. The subject referred to in the second specification of error grows out of an evident inadvertence in the language of the decree. The exception which was sustained is the third; not the second, as erroneously stated in the decree. A reference to the exceptions makes it at once apparent that this is what was intended by the court. The third exception was properly sustained, and the decree of the court is in conformity with that conclusion. The careful and earnest argument of the learned counsel for the appellant has not persuaded us that the view of the case entertained by the orphans’ court was erroneous.

The decree is, therefore, affirmed.