114 Mass. 159 | Mass. | 1873
By this contract the plaintiff entered the employment of the defendants for five years, and was to receive an annual salary of $1800, and one half the annual profits, unless the same should exceed $6400, in which case he was to receive one third of the excess. The contract carefully recites what items of expenditure shall be charged to the business each year in determining the profits. The sum total of these items is to be deducted from the amount received as the price of machinery and other articles actually sold, and the excess is to be taken as profits.
These are the main features of the contract. Two clauses are especially relied upon by the plaintiff, as changing materially the general provisions above recited:
First, “ Provided the agreement shall be terminated as hereafter specially provided,” “ the foregoing provision shall not restrain or affect the allowance and adjustment of all claims arising out of such earlier termination.”
Second, “ And at the expiration or earlier termination of this agreement, as hereafter provided, the value and cost of all raw materials or unfinished machinery then on hand shall be computed and ascertained according to the provisions of the present agreement.”
Unless the two clauses relied on by the plaintiff modify and control the other provisions of the contract, this action cannot be maintained.
1. It was evidently the general purpose of the agreement to pay the plaintiff, in addition to his salary, a certain proportion of the annual profits. This proportion was to be computed, at the end of each contract year, upon the excess of funds accruing from actual sales, after the payment of the expenses of the year. These annual settlements were final and conclusive, but if the defendants terminated the contract, they were bound to pay the plaintiff such additional sum for each year’s services as would make the sum of four thousand or five thousand dollars per annum, if that sum had not already been received by the plaintiff from his annual settlements. In other words, the annual settlements were conclusive, except when, on terminating the contract, payments might have to be made to the plaintiff to bring his compensation up to the stated sum per annum, in which case such annual accounts could be opened to ascertain what compensation he had already received. We think this to be the true construction of the first clause relied upon by the plaintiff, and that it in no wise bears upon the question at issue, whether the plaintiff is entitled to the profits of a fractional part of a year.
2. The other clause relied on presents a question of more difficulty. It simply provides (for what purpose does not in terms appear) for the taking an account of the value of the raw material and unfinished machinery on hand at the expiration or earlier
To whatever contingency, therefore, arising under the contract, this clause may apply, it does not apply to the estimating of profits for the fraction of a year, and cannot be held by implication to change the rate of compensation upon termination, for which the contract elsewhere makes express and careful provision. If the parties had intended any other than annual accounts, the contract should have provided in more distinct terms for making them for fractional portions of a year.
Plaintiff nonsuit.