79 Vt. 206 | Vt. | 1906
The contract in question, dated September 5, 1901, was entered into by the defendant as the party of the first part, and by the plaintiff as the party of the second part. It contains clauses material in this case as follows: (1) “The party of the first part hereby agrees and doth hereby employ the party of the second part for the period of five years from the date hereof as a permanent member of its advisory or executive board of directors in America and also to supervise and protect the interests and business generally of the party of the first part.” (2) “As remuneration for the said services the party of the first part agrees to pay the party of the second part an annual salary of four thousand eight hundred dollars
The defendant is an English company organized under the laws of the Kingdom of Great Britain, with its principal office in the city of London. The purpose and object of the company was to acquire the right to’ manufacture, exploit, and sell photographic dry plates produced by what is known as the Lumiere process. This process was controlled by what is called here the French Company. The latter company was the promoter of the English Company and the owner of more than half of its capital stock. The defendant’s plant, located at Burlington in this State, was completed and ready for occupation in February, 1903, and the defendant had notice thereof from the plaintiff who in all respects faithfully and to the defendant’s satisfaction performed his part of the contract up to and including the 15th day of October, 1903, when he received notice from the defendant that its entire plant and property, real and personal, at Burlington, had been leased to the French Company and had passed into its hands for a period exceeding the unexpired portion of the plaintiff’s term of- em
At the close of the evidence the defendant moved for a verdict on the ground -that the consummation of the lease whereby the entire plant, assets, and business of the defendant company passed into- the hands of the French company for a period extending beyond the limit of plaintiff’s employment, did not SO' far put it out of the defendant’s power to perform its contract with the plaintiff as to amount to a revocation of the contract. Whether this motion should have been granted is a question for consideration.
In support of the motion it is urged that the essence of the contract, as far as the plaintiff was concerned, was the salary and compensation which he was to receive under it; that whether work should be exacted of him was a matter wholly with the' defendant, not of the essence of the obligation, and if the plaintiff received his salary to the end of the term of his contract he was no.t to be heard to complain because he was given no work; that the giving of the lease in no way prevented the defendant from paying the plaintiff his salary as it should become due; and that since the letter of October 7, as interpreted by the court, did not constitute an essential' breach of the contract, and there was no salary due the plaintiff when he brought this suit, the motion should have been granted. On the other hand, it is argued that the giving of the lease together with the notice to the plaintiff contained in the letter
As already observed the' defendant by the terms of the contract agreed to- and did “employ” the plaintiff for the period of five years. Whether the word “employ” as there used might properly be construed to mean that the defendant would keep the plaintiff supplied with actual work we do not consider; for clearly the intention of the parties was-that it should not imply less than that the defendant should keep the plaintiff in its service throughout the term specified. This is of the essence of the contract, and to this extent, at least, the defendant was bound to perform. Emmens v. Elderton, 4 H. L. Cas. 624. Did the defendant do this? No question is made but that by its lease the defendant was made powerless to furnish the plaintiff with work, and we think it also- thereby severed the relation of master and servant. The defendant informed the plaintiff by the letter of October 7, that the leasing of the business to the French company was an accomplished fact, and that Gentlemen Dumiere had taken on themselves, personally, the responsibility of starting the business from both the comjnercial and- technical point of view. The plaintiff was therein asked to cancel the powers with which he had been -entrusted and to leave the-field absolutely free to the staff delegated by Messrs. Dumiere. He is also there told that the “Dumiere Societe,” which means the French company, would of course, continue to pay him his salary on the sole condition on the part of the plaintiff that he remain at its entire disposition, in case, in the future they should think proper to make use of his experience and ability. But that if he should not be disposed to accept such a position, and if he should desire to be at liberty to employ his energies in another business, the defendant would be quite disposed to discuss with him “any proposals for
The case of Brace v. Calder (C. A.), [1895] 2 Q. B. 253, is very much’ in point.- There the plaintiff had agreed with the defendants, a firm consisting of four members, to serve them as manager of the office part of the business of Scotch whiskey merchants then carried on by them in the city of London and surrounding districts for the term of two years, at a fixed salary. Before the expiration of the term two of the
In Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S, 264, 28 L. ed. 423, a life insurance company had transferred all of its assets to another company, the transferee in consideration thereof agreeing to re-insure all risks of the transferrer and to assume all its liabilities. It was held that by transferring all its assets and obligations to the new company the old company totally abandoned the performance of its contract with the complainant, and that the latter had a right to consider his insurance contract as terminated by the act of the company,, and to sue to recover back whatever was justly due him by-reason of premiums paid. Mr. Justice Bradley speaking for the Court said: “Where one party to an executory contract prevents the performance of it, or puts it out of his own power to-perform it, the other party may regard it as terminated and-, demand whatever damage he has sustained thereby.” In Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1,. 43 L. ed. 591, the railroad company promised to pay one of its-employees, who had been injured in the performance of his. duties, certain wages a month, and to furnish him with certain.
The case of Turner v. Sowdon & Co. (C. A.), [1901] 2 K. B. 653, cited by the defendant, is not in conflict with the doctrine laid down in the cases to which we have made reference. There the contract of employment, in its substantial features, closely resembles the one now before us. The employer agreed to engage and employ the employee as servant and representative salesman for the term of four years, salary to be paid in monthly installments. After the employee had acted in the performance of his contract for some time, he was notified by the employer that although he would still be in the employ of the firm and at their disposal he would not thereafter be required to perform any duties; t-hat he would please call for his salary when the next installment should be due
Nor is the case of Sands v. Potter, 165 Ill. 397, 56 Am. St. Rep. 252, cited by the defendant in conflict. There while the servant was engaged in the performance of his contract of service, a corporation was' formed by the master and thereafter the business was carried on in the corporate name, but all the stock was taken by the master and the business conducted the same as before. It was held that the incorporation of the: company was a mere nominal affair, and that the contract between the master and the servant was not abrogated because-of its formation.
The defendant further contends that the court erred in not holding as a matter of law that the correspondence discloses such acquiescence in the proposed lease and assent thereto by the plaintiff during the negotiations as precludes him from
The plaintiff testified that he never expressly consented to the leasing of the property, and that anything he did or any information that he furnished with reference to the leasing, was-as the agent of the defendant and because he. was requested to do so by it; that the defendant requested him to do certain things and he as agent was obliged to do them; that if they wrote him for an inventory of machinery, he supplied it; that he had nothing to do about defendant’s leasing, and had no-.option to .tell defendant whether it should lease the business or
The record shows other evidence bearing on the question of the plaintiff’s assent to the transfer of the property and business to the French company by lease, but enough has been particularly noticed to make it clear that this question did not stand on the correspondence alone. The plaintiff was entitled to have it determined on the whole evidence bearing thereon, and while it is true that generally the construction of written ■instruments is a question for the court, it is likewise true that where the case turns upon the proper conclusions to be drawn from a series of letters taken in connection with other facts and circumstances it is one which may properly be referred to a jury. Rankin v. Fidelity Ins. T. & S. D. Co., 189 U. S. 242, 47 L. ed. 792; West v. Smith, 101 U. S. 263, 25 L. ed. 809.
Defendant excepted to that portion of the charge where the court told the jury that the consummation of the lease for a period which exceeded the limit of the plaintiff’s employment, and by the terms of which all the plant, property, and business of the defendant at Burlington passed into the hands of the French Company, was a breach of the contract entitling the plaintiff to maintain this action, unless his conduct prior to the consummation of the -lease, or his conduct subsequent precludes him from setting that up as a breach. This part of the charge with the exception of the last clause is in accordance with our holding on the same question raised by the motion for a verdict and needs no further discussion. The modifying clause relating to subsequent conduct was error, but it was an error in defendant’s favor and not here, available. As we have
For the same reason, if for no other, Exhibit T, showing ■cash advanced by the plaintiff after he received notice of his •discharge, and purporting to have been settled with the representative of the French company, was properly excluded. Its admissibility is claimed only on the ground that it was evidence showing that the plaintiff was then acting for the defendant. Yet as just seen the plaintiff could not affect the discharge by continuing his service, hence the evidence was immaterial. •
The defendant made a large number of requests to charge, covering more than seven pages of the printed record. It excepted “to the failure to charge as requested, in so far as there may have been an omission to charge as requested, and to the charge as given upon these points on those several requests.” But these exceptions are qualified and too general to be noticed. Luce v. Hassam, 76 Vt. 450.
Judgment affirmed.