Thompson v. ALD, New York, Inc.

255 N.C. 321 | N.C. | 1961

Bobbitt, J.

Plaintiff signed the sales agreement, designating plaintiff as Buyer and P. McElheney as Salesman, after he had been advised positively by DeBoer that he (plaintiff) was not .entitled to the commission. Thereafter, plaintiff received the equipment and paid the full purchase price therefor. Whether these facts, if they had been properly pleaded, would be sufficient to estop plaintiff from asserting a claim for commission, need not be decided or discussed.

■ The basic question is whether, independent of estoppel, plaintiff was entitled to a commission on the sale price of the equipment he purchased from defendant.

“The heart of a contract is the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.” Stacy, C.J., in Electric Co. v. Insurance Co., 229 N.C. 518, 520, 50 S.E. 2d 295; DeBruhl v. Highway Commission, 245 N.C. 139, 145, 95 S.E. 2d 553, and cases cited. The sufficiency of plaintiff’s evidence is to be tested in the light of this well-settled legal principle.

Clearly, when they entered into the contract of October 5th, both plaintiff and defendant contemplated and intended that plaintiff was employed, as a salesman, to sell equipment to third parties. It was not contemplated or intended that plaintiff would go into the automatic Laundromat business and purchase equipment from defendant incident to the establishment thereof. Indeed, the contract of October 5th provides: “For so long as his employment may continue, no sales representative or person in the employ of ALD, Inc., or ALD New York, Inc. may own or have any interest in an automatic laundry store nor may he own nor have any interest in any laundry equip-met, coin metered or otherwise, which may be made available for use of customers in private or public housing of whatever type.”

Plaintiff did not make or attempt to make a sale of automatic Laundromat equipment to any third party during the two weeks he acted under defendant’s instructions. The training he received at defendant’s expense during this period was to prepare him to do so. But, when he returned from New York on Saturday, October 17th, plaintiff was “completely sold” on the automatic Laundromat business and “wanted to get into it.” Having made this decision, plaintiff acted promptly. By Tuesday, October 20th, he had leased the building in Williamston. Thereupon, he notified DeBoer of his decision to go into the automatic Laundromat business and that he had obtained the lease. On Thursday, October 22nd, in Williamston, plaintiff purchased the equipment from defendant in accordance with the sales agreement.

Plaintiff testified he received no notice from defendant with reference to the termination of his contract. But plaintiff, without prior notice to defendant, made his decision to enter the automatic Laundromat business; and from Sunday, October 18th, plaintiff was engaged in activities relating solely to his personal business venture. In our view, plaintiff’s said decision and activities were wholly inconsistent with the purpose for which he was employed and constituted an abandonment by him of his employment contract; and, when advised of plaintiff’s said decision and activities, defendant was fully justified in treating the contract as having been terminated by plaintiff. “An employee who refuses to serve or voluntary abandons his employer’s service, terminates the employment, or, at least, the employer is authorized to rescind the contract and refuse longer to be bound by it.” 56 C.J.S., Master and Servant § 40.

Having so terminated his contract of employment, plaintiff had no right to commission on account of any sale thereafter made; and on October 22nd, when the sales agreement was executed, plaintiff’s true status was that of purchaser from defendant rather than salesman for defendant.

Plaintiff offered a letter dated October 29, 1959, from plaintiff to Mr. Dan Fitzgerald, containing, inter alia, this statement: “About the fourth day of this school, I asked you if I sold myself a store would I get the commission on the sale. Your exact reply was, ‘Yes Sir, you sure do.’ ” The evidence fails to show any authority on the part of Fitzgerald, defendant’s Eastern Division Training Manager, to enter into any agreement on behalf of defendant in relation- to plaintiff’s contract of employment. If the remark attributed to Fitzgerald is considered an expression of a legal opinion, such opinion is not in accord with the views of this Court.

Being of opinion (1) that the contract did not contemplate the payment of a commission by defendant to plaintiff on a purchase of equipment by plaintiff from defendant incident to plaintiff’s withdrawal from defendant’s employment and his establishment of an automatic Laundromat business, and (2) that the decision and activities of plaintiff constituted an abandonment and termination by plaintiff of his employment contract prior to his negotiations with DeBoer and his purchase of equipment from defendant, the judgment of involuntary nonsuit is affirmed.

Affirmed.

RodmaN, J., took no part in the consideration or decision of this case.