Adolph v. Cookware Co. of Am.

• Decision Date: 04 April 1938
• Docket Number: No. 69.,69.
• Citation: 283 Mich. 561,278 N.W. 687
• Parties: ADOLPH v. COOKWARE CO. OF AMERICA.
• Court: Michigan Supreme Court

283 Mich. 561

278 N.W. 687

ADOLPH

v.COOKWARE CO. OF AMERICA.

No. 69.

Supreme Court of Michigan.

April 4, 1938.

Suit by Herbert M. Adolph against Cookware Company of America to recover compensation under a contract of employment. From a judgment for the defendant, plaintiff appeals.

Reversed and new trial granted.

Appeal from Circuit Court, Berrien County; Fremont Evans, judge.

Argued before the Entire Bench.

Thomas N. Robinson, of Benton Harbor, and Carl E. Schultz, of St. Joseph, for appellant.

Gore, Harvey & Fisher, of Benton Harbor, for appellee.

WIEST, Chief Justice.

Claiming an oral agreement with Dr. William A. Burnette, president of defendant company, for permanent employment by the company and to receive for his services 2 per cent. of the gross receipts from all sales made by the company, and alleging his unwarranted discharge, plaintiff brought this suit to recover such compensation to the time of his discharge and the present worth of prospective participation in the gross receipts from sales.

Defendant, by answer to plaintiff's declaration, denied every averment essential to plaintiff's right of action.

The issues came to trial before a jury and, at the close of plaintiff's proofs, on motion of defendant, the court directed a verdict for defendant.

The trial judge, in effect, held that an oral agreement, understood by the parties to be reduced to writing before becoming effective, was not a contract until so reduced to writing, and plaintiff could not recover under the alleged contract. Comp.Laws 1929, § 13417.

Plaintiff, in 1934, was a chiropractor in practice at Carrollton, Ga., and had become interested in defendant's products. About January 1, 1935, at Chattanooga, Tenn., plaintiff met William A. Bernette, president and general manager of defendant company, and claims that an oral agreement was made that he should write a book, to be published by the company, the writing to take two or three months and, when asked by Dr. Burnette: ‘* * * how little do you suppose you could get along on until we get this thing going?’ he said: ‘You really don't need to pay me anything at all.’ However, it was arranged that plaintiff have $25 a week to defray his expenses, and was given a check for $25, which he said he would not use then and would wait until he started for Hartford (Michigan), the home town of the company.

We quote the following from plaintiff's testimony: ‘After we had definitely settled the expense money, he (Dr. Burnette) said ‘I think we ought to have something arranged.’ And we both agreed we should have something arranged in writing on this. He asked me to write up a contract and send it to him, for his approval, and I told him that be being the President of the company, I thought it was up to him to write up the contract and send a copy to me, so I said, ‘I would suggest that you write up your contract in two copies and send me one in conformity with what we have talked over, and if it is satisfactory I will sign one and send it back.’ Send both copies. I was to sign them both and send one back. And he agreed to do that, which would be very logical. That was the end of my contact with him at Chattanooga.'

January 19, 1935, plaintiff wrote defendant's president a letter, stating that he had arranged his affairs and could leave for Hartford one week ahead of previously contemplated schedule, and:

‘* * * In case of an emergency I may wire you for $25.00 while enroute. I will explain the reason when I see you, otherwise hold everything till I arrive in Hartford. * * *

‘What I cherish mostly is the opportunity you have given me to build up to a station in life in keeping with my ability, training and desire for the special work I have followed.

‘The remuneration for my services is I feel a secondary matter. Judging from the way you have compensated other men who have made good in your organization I feel perfectly willing as stated to you before to let the matter of compensation rest with your judgment, and I shall have no doubt about getting a fair and square deal at all times.'

This letter does not indicate a completed contract for employment, but rather one having further negotiations in view.

On his way to Hartford, where the terms of his employment were to be considered and embodied in a written contract, he received a letter from the president of the company, dated January 15, 1935, in which it was stated:

‘This will confirm our agreement that you are to come to the home office as soon as you find it convenient to do so-say within the next two or three weeks, and that you are to give your full time and attention to your work for the Co. As your compensation, I agree to pay you $25.00 at the beginning. Any increase in pay will depend upon your worth to our organization.

‘You are to work under my personal direction and if for any reason at any time you wish to terminate your connection with us you may do so by giving us two weeks notice and if for any reason I wish to terminate your employment I may also do so by giving you a two weeks notice.

‘My idea is to make you the head of our health extension Dept. * * * I feel certain that we will get along splendidly if you are able to develop a practical business man's point of view regarding the...