Resener v. Watts, Ritter & Co.
80 S.E. 839
W. Va.
1913
Check Treatment
Lynch, Jüdge :

Uрon the general issue in assumpsit, the jury found in favor of plaintiff $576.83, claimed by him as a balance due under a contract of employment. The court, on motion of defendant, set aside the verdict as ‘1 contrary to the law and the evidence, ’ ’ and awarded a new trial. By his writ of error, plaintiff asks reversal of this ruling and a judgment here upon the verdict.

His contention is that the contract proved is a general or indefinite hiring, terminable at will; that, upon voluntary withdrawal therefrom, he'is entitled to the сompensation then earned, represented by the sum sued for. Defendant, on the other hand, claims the employment was for the definite period of one yеar, and that, having quit before full performance, plaintiff can not recover on the contract or on a quantum meruit.

The terms of the contract, except its duration, aré clearly proven. In the latter part of 1907, plaintiff entered the employment of defendant, a wholesale dealer in dry goods and notions, as traveling salesman^ upon an agreement for a monthly salary and expenses, and the further compensation of five per cent commissions, in excess of salary and expenses, ‍‌​​‌‌​​​‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‍on goods sold by him, the excess to be ascertained and paid on settlements made at the end of each year. No definite duration wаs fixed for the employment) Plaintiff worked until December, 1908, when he was paid the commissions due for the year, and a new contract made with the same terms excеpt that the monthly salary was increased and new territory *344added. Watts, president of the company, says the contract was “for one year,” but he does not furthеr indicate there was a mutual agreement to that effect. Plaintiff continued to work under this contract until the close of 1909, except that his commissions were reduсed by Watts in February from five to 'three per cent. Upon the annual settlement at the close of 1909, no commissions were due plaintiff, his commissions being ten dollars less than the aggregate of his salary •and expenses for that year. Both he and Watts say no new arrangement was made for 1910; that the agreement for 1909 ■continued without change. During the employment, defendant rendered monthly statements to plaintiff, showing both the sums paid him as salary and expenses and the amount of ¡•goods sold by him during the рreceding month. Plaintiff ■continued in the employment of the company until May, 1910, when, having become interested as stockholder in another ■similar company, he notified Watts of his intention to discontinue his previous engagements, and, without objection "by defendant, quit its service, ^He had then earned in that ■year $576.83 in commissions in excess of salary and expenses.^ 'To recover this balance, he instituted this action,, having already received all salary and expenses then due.

These are the facts from which we must determine whether the employment was for a year or at will. This is the crucial test of plaintiff’s right to recovery. No proof defines ‍‌​​‌‌​​​‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‍the duratiоn of the employment. It is general, not definite. Being of such indefinite character, it is necessary to ascertain by construction the extent of the engagemеnt.

The authorities, while not wholly in accord, generally state the doctrine applicable to such cases to be that an employment upon a weеkly, monthly or annual salary, if no definite period is otherwise stated or proved for its continuance, is presumed to be a hiring at will. Many authorities so hold. Edwards v. Seaboard Railroad Co., 121 N. C. 490; Currier v. Lumber Co., 150 N. C. 694, 134 Am. St. 955; Finger v. Brewing Co., 13 Mo. App. 310; Evans v. Railway Co., 24 Mo. App. 114; Hotchkiss v. Godkin, 71 N. Y. S. 629; Cycle Co. v. Teeter, 18 Ind. App. 476; Bentley v. Smith, 3 Ga. App. 242; Prentiss v. Ledyard, 28 Wis. 131; Haney v. Caldwell, 35 Ark. 156; Booth v. India Rubber Co., 19 R. I. 696; Orr v. Ward, 73 Ill. *345318. 1 Labatt on Mas. & Serv. §159, says: “The dоctrine applied by the great majority of the courts, which have so far (1913) expressed an opinion on the subject, consists essentially in a complete repudiation of the presumption that a .general or indefinite hiring is a hiring for a year, and the substitution of another presumption, viz., that such a hiring is a hiring at will. Under this doctrine, the burdеn of proving that such hiring was obligatory for a year rests on the party who seeks to establish that the contract covered that period. ’ ’ So Martin v. Insurance Co., 148 N. Y. 117, says that “a hiring at sо much a year, no time being' specified, is an indefinite hiring; and ‍‌​​‌‌​​​‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‍such hiring is one at will, and may be terminated at any time by either party.” Wood on Mas. & Serv. §136 states the doctrine еven stronger — that “a hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but оnly at the rate fixed for whatever time the party may serve; # # and in such cases the contract may be put an end to by either party at any time, unless the time is fixed, and a recovery had, at the rate fixed, for the services actually rendered”. Greer v. Arlington Mills Co., 1 Penn. (Del.) 581, though with greater caution, declares that “a hiring at a certain sum a yеar, no time being specified, and unaccompanied by any fact or circumstances in proof from which a different intent may be inferred, and when the testimony аs to the contract is not conflicting, is an employment for an indefinite period, and not for a® year, and is determinable at any time at the option of eithеr party thereto”.

Application of this test does not lead to the conclusion that,n upon the facts disclosed here, the contract required plaintiff tо serve during the year 1910. Defendant changed its terms in .February, 1909, from a five to a three per cent commission, conceding to its salesmen the option to quit or further сontinue in its employment. It paid the salary and expenses, ‍‌​​‌‌​​​‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‍except commissions, at the end of each month, and commissions at the end of each yeаr — in case of the latter, only because until that time it could not ascertain whether the amount due to each saleman exceeded his salary and expenses. This postponement was thus a necessary convenience, solely for the purpose'of an annual adjustment of accounts, *346and not an essential ingredient of the contract of employment.

■ For defendant, it is urged that plaintiff’s testimony shows an annual employment. We do not reach that conclusion. His statement, that the same arrangement was made or modified for the next succeeding year, does not mean that when so made or modified it required his services fоr an entire year. Nor is defendant’s testimony on this subject in any degree convincing. It is true, he says that at the end of each year the contract was renewed fоr the succeeding year, and was to cover a year. But for 1909 it did not thus continue, because altered* as we have seen, in February of that year. He then cоnstrued it as a contract at will, and, therefore, subject to alteration or revocation. Again, it is not sufficient for defendant to state only that the contract was for a year, and that he did not contract with his salesmen.for a shorter period, without more. He must, in view of the authorities cited, also show that plaintiff so understood and agreed to the contract as one requiring service during such period. "Unless their understanding was mutual that the service was to extend for a certain fixed аnd definite period, it is in indefinite hiring, and is determinable at ‍‌​​‌‌​​​‌‌‌‌​​‌​​​‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‍the will of either party”. Wood on Mas. & Serv. §136; Railway Co. v. Roberson, 3 Col. 142, 146; Iron Co. v. Carpenter, 67 Md. 554, 557; Prentiss v. Ledyard, 28 Wis. 131; Orr v. Ward, 73 Ill. 318; Raney v. Caldwell, 35 Ark. 156. Here there is no such proof. To constitute an agreement, the minds of the parties must concur, or meet upon its* terms; otherwise there is no agreement.

Besides, it was a question for the jury to say, by its verdict, under the instructions clearly presеnting the theories of the parties, whether the contract required a year’s service; which inquiry it thereby answered in- the negative. Both by reason and authority, the burden to show a definite term of employment rested with defendant, as the contract did not expressly state the term. The court erred in disturbing the finding of the jury.

Our conclusion is that the сontract proved was for an indefinite term, and, therefore, revocable at the will of either party. Being of that opinion, we reverse the judgment of the triаl court, overrule defendant’s motion for a new trial, and enter judgment on the verdict of the jury.

*347 Reversed, motion for neiv trial overruled, and judgment entered on the verdict.