192 Mass. 167 | Mass. | 1906
This is an action of contract to recover damages for breach of a contract in writing, made on July 81,1899, by the terms of which the plaintiff was to become the sole manager for the defendant in the New England States, with an office in Boston, for a period of three years from September 1,1899, at a salary of $1,800 a year, together with twenty per cent' of the net income of the business of the office and territory as a whole, over and above all expenses of the business.
In the Superior Court the case was sent to an auditor who found for the plaintiff. After the filing of his report the case was tried before a judge of the Superior Court, without a jury. He also found for the plaintiff. The only exception of the defendant is to the refusal of the judge to rule that the plaintiff could not recover because the action was brought on the morning of August 30, 1901, and the contract was not broken and the defendant was not discharged until the afternoon of that day, after the writ had issued and the keeper had been placed in possession.
We are of opinion that the judge was not bound to find the facts as stated in this request. There was evidence that the writ was not made until between twelve and one o’clock in the after
The witness further testified that in the afternoon when he came back he found a letter lying on his desk stating: “You are informed that your services as manager terminate August 31, 1901.” There is some confusion about the time this letter was received. The plaintiff first puts it at three o’clock, and then at half past one. The preliminary part of the bill of exceptions states that Van Court met the plaintiff after the keeper was put in; that the plaintiff and Van Court had some words, and then Van Court gave the plaintiff the letter. It further appeared that Van Court was very angry when he found that a keeper had been put in the Boston office.
No question is made as to Van Court’s authority to discharge the plaintiff, and the presiding judge may well have found that both the plaintiff and Van Court understood from the conversation in the morning that the plaintiff was discharged, and that the letter was but a subterfuge to render the action brought of
Exceptions overruled.