Tubbs v. Cummings Co., 200 Mass. 555

200 Mass. 555 | Mass. | 1909

Hammond, J.

This is an action of contract to recover salary for one year (less such sums as the plaintiff earned in other employment after his discharge), upon the following contract:

“Worcester, Mass. Jan. 5,1907.

“ Memorandum of agreement between Mr. Frederick A. Tubbs and The Cummings Co., Mr. Tubbs to sell goods for The Cummings Co., exclusively and under their direction in the States of Indiana— Illinois — Michigan and Wisconsin and such other territory as may be mutually agreed upon. The Cummings Co. agree to advance Mr. Tubbs the sum of $75 to cover his first weeks salary and legitimate travelling expenses beginning Jan. 5th, 1907, and thereafter the sum of $50 each week for such time as Mr. Tubbs shall be travelling in their exclusive interest and under their direction.

“ If Mr. Tubbs shall complete a full year’s service in the exclusive interest of The Cummings Co., and his accepted orders shall have been filled and payment received by The Cummings Co., in excess of ($48,000) forty-eight thousand dollars in that year, Mr. Tubbs shall be entitled to receive from The Cummings Co., an additional sum equal to five per cent on whatever amount such orders shall exceed the sum of forty-eight thousand dollars.

“ Frederick A. Tubbs,

The Cummings Co.,

“ Albion S. Clement, Mgr.”

The plaintiff began work under the contract on January 5, 1907, and was discharged January 24, 1907.

At the trial the presiding judge ruled that “ the contract was a contract for one year.” To this ruling the defendant excepted. The exception must be sustained. Upon its face the contract was a hiring by the week at the most, and not by the year or for a year. The payments were to be made weekly; and while this circumstance is of but little if any weight where there is other language in the contract expressly or impliedly describing the term of service to be longer than a week, yet in the absence of such other language it is of great weight. In the contract before us there is no language expressly naming one year as the term of employment. Nor is the language such as to imply that such is the understanding of the parties. The reference to a “ full year’s service ” is not made as if such service was one of the settled and absolute features of the contract, but merely as if it were a possible contingency. By the first paragraph of the contract the plaintiff’s weekly salary was fixed for the time he should work. By the second it was provided that in certain contingencies he should receive an additional compensation. Those contingencies were two, namely: First, that he shall have completed “a full year’s servicesecond, that his accepted orders “ shall have been filled and payment received by . . . [the defendant] ... in excess of $48,000.” One of these events was as contingent as the other. There is no fair implication that either was to be regarded as absolute. Such is the fair construction of the contract upon its face. The case differs materially from cases like Norton v. Cowell, 65 Md. 359, Koehler v. Buhl, 94 Mich. 496, Kelly v. Carthage Wheel Co. 62 Ohio St. 598, Heminway v. Porter, 94 Ill. App. 609, Babcock & Wilcox Co. v. Moore, 62 Md. 161, upon which the plaintiff relies. It more nearly resembles cases like Harper v. Hassard, 113 Mass. 187, although it is much stronger for the defendant than that case was. For a discussion of the law on this subject see Maynard v. Royal Worcester Corset Co. 200 Mass. 1.

And this construction is confirmed by the circumstances under which the contract was made. The defendant was a manufacturer of boots and shoes at Worcester in this State. Before January 5, 1907, it advertised for a salesman for certain western territory. The plaintiff saw the advertisement and applied for the position, furnishing references. After inquiries the defendant entered into the contract. The parties were strangers to each other. The plaintiff could not know that the defendant would he a reasonable or satisfactory employer, nor could the defendant know that the plaintiff would be an agreeable or successful salesman. Each might want to know more of the other" before making a contract which-would be binding for a long time. These circumstances point not so much to a contract for a year as to a contract in the way of a trial, on the part of the defendant, of the capacity of the plaintiff, and, on the part of the plaintiff, of the desirability of continuing in the employ of the defendant.

Moreover, the acts of the parties tend strongly to show that this view of the nature of the contract was plainly in accordance with their understanding. Within three weeks from the commencement of the service the defendant discharged the plaintiff, and the latter, while evidently feeling much aggrieved at the act as very unjust towards him, and while protesting that he had worked faithfully for the interests of the defendant, did not in any way claim at the time that the contract was for a year. On the contrary he seemed to accept his discharge as an act within the power of the defendant, and the chief wish he expressed was to get home.

It becomes unnecessary to consider the other exceptions.

Exceptions sustained.