Advance Aluminum Castings Corp. v. Schulkins

• Decision Date: 08 April 1954
• Docket Number: No. 4947,4947
• Citation: 267 S.W.2d 174
• Parties: ADVANCE ALUMINUM CASTINGS CORP. v. SCHULKINS.
• Court: Texas Court of Appeals

Page 174

267 S.W.2d 174

ADVANCE ALUMINUM CASTINGS CORP. v. SCHULKINS.

No. 4947.

Court of Civil Appeals of Texas, Beaumont.

April 8, 1954.

Rehearing Denied April 28, 1954.

Wardlow Lane, Center, for appellant.

Davis Bailey, Carthage, for appellee.

WALKER, Justice.

The action is for damages. Appellee Schulkins is the plaintiff. There were four defendants; appellant Advance Aluminum Castings Corporation was charged with breach of a contract of employment with plaintiff, and E. T. Pierce, J. E. Pierce, and R. L. Eakin, Jr. were charged with procuring this breach of contract.

The defendant Corporation is engaged in the business of selling cooking ware made of aluminum; and plaintiff became one of said defendants' salesmen in October, 1948 and served in that capacity until he was appointed Assistant Factory Representative. Such a salesman is styled 'a dealer,' and the agreement between defendant Corporation and plaintiff concerning this relation was eventually reduced to writing. This contract was dated February 10, 1949. Four days later, by a letter dated February 14, 1949, the defendant Corporation appointed plaintiff to the place of Assistant Factory Representative; and plaintiff accepted and served in this place until defendant Corporation appointed him a Factory Representative by a letter dated December 16, 1949. He accepted and served in this place until he was discharged. He testified that he was discharged on October 23, 1950, and this was the date of a telegram to him from Wilson, defendant Corporation's president, which, in substance, instructed him to turn over his office to the defendant Eakin. A telegram to plaintiff from the defendant E. T. Pierce, dated five days earlier, gives as the reason for plaintiff's discharge the failure of plaintiff's district to produce adequate sales for defendant Corporation and this was the reason given plaintiff by E. T. Pierce in a later conversation. Plaintiff said he knew of nothing which warranted his discharge and it is not clear to us from the evidence as to what his theory is concerning the reason for his discharge. The plaintiff eventually entered the employment of one of defendants' competitors, and was so employed when this cause was tried.

The three persons who were the defendant Corporation's co-defendants either were or had been agents of the defendant Corporation. E. T. Pierce was the plaintiff's immediate superior officer from the time the plaintiff became a dealer until he was discharged. J. E. Pierce at one time during this same period was a factory representative of the defendant Corporation but at the time of trial was a dealer. R. L. Eakin, Jr. had served under plaintiff and had replaced plaintiff; he was not in defendants' employ when this cause was tried.

The cause was tried to a jury and such of the findings as need be discussed are mentioned below. The trial court rendered judgment for plaintiff against the defendant Corporation for the damages assessed by the jury, which amounted to $8,678.00. Plaintiff was denied any relief against the defendant E. T. Pierce, and the defendants J. E. Pierce and R. L. Eakin, Jr. were dismissed at plaintiff's request. From this judgment the defendant Corporation has appealed. The plaintiff took no appeal.

Opinion

(1) Defendant Corporation argues that it was entitled to judgment on the ground that the contract between the plaintiff and

said defendant was proved as a matter of law to be one for personal services, at the will of the parties, and that said defendant Corporation had a legal right to terminate this contract with or without cause.

The plaintiff says that his contract of employment was not one for personal services but was 'an exclusive sales contract in which the entire remuneration (he) was to receive was covered by and was paid out of the sales (he) was able to produce through his dealers he had trained to sell in the territory assigned to him.' Plaintiff says further that this 'sales contract was to continue for such length of time as (he) remained in business and chose to work as a sales manager in the assigned territory, which was indefinite only to the extent that neither party to the contract was able to say at its inception on what date it would terminate, yet it was regarded as permanent within the meaning of that class of contracts to which it belongs-and by the intention of the parties themselves.' The plaintiff says further that his performance of his duties, his removal of his home from one town to another, and his purchase of a home were consideration for the promise of the defendant Corporation. Plaintiff also argues that defendant Corporation may be bound although he was not.

The evidence pertaining to these arguments of the parties is the following:

The plaintiff actually made three successive contracts with the defendant Corporation.

The first of these contracts was that governing his relationship as dealer for the defendant Corporation. The function of a dealer for said defendant is to sell the defendant Corporation's goods; and the written agreement of February 10, 1949 between plaintiff and said defendant Corporation, purported to make the plaintiff, while dealer, an independent contractor who conducted his own business and was not an employee of said defendant. This agreement, according to paragraph 21 thereof, was to continue for five years unless terminated by mutual agreement or, by either party, for certain reasons; but the plaintiff's appointment as Assistant Factory Representative only four days later indicates that this contract of February 10th had only some formal purpose.

The subsequent conduct of the parties shows that the parties ended this contract of February 10th by mutual consent by defendant Corporation's appointment of plaintiff as Assistant Factory Representative and the plaintiff's acceptance of this appointment and his subsequent performance of the duties of this place. This appointment was inconsistent with the status of dealer and the plaintiff never acted as a dealer after he became an Assistant Factory Representative.

The second of plaintiff's contracts with the defendant Corporation was that made when he became an Assistant Factory Representative. The only writing which concerns this appointment is the letter of February 14, 1949 which we have mentioned; and the name of the addressee, written as F. E. Schulkins, was intended for the plaintiff's name. This letter fixed the plaintiff's compensation at a 'salary' of $60 a week plus a commission, styled 'overwriting,' graduated according to the value of sales made. The testimony shows that an Assistant Factory Representative was assigned to and worked within a definite territory and that the sales on which 'overwriting' was to be paid plaintiff were those made by the dealers working under him in this territory. The letter indicates in only a very general way the plaintiff's duties as Assistant Factory Representative, but the testimony shows that it was his function to hire and train salesmen for the defendant Corporation and by supervision and assistance to cause the salesmen within his territory to sell as much of the defendant Corporation's ware as possible. Methods of training were 'outline' by said defendant, and materials to be used in training were furnished by said defendant. It is apparent from the plaintiff's testimony that it was not his function as Assistant Factory Representative to make independent sales in direct competition with his dealers and we infer that he did not, at least as a rule.

The letter appointing the plaintiff Assistant Factory Representative did not fix the period during which this appointment was to last, except, perhaps, by implication from the provision of a weekly salary; and the only testimony which might have some bearing on how long this period was to be is that of the plaintiff concerning E. T. Pierce's oral statements to him about the permanency of the plaintiff's employment which are mentioned below.

However, it is to be noted that this appointment was not made by, and that the letter of appointment was not written by E. T. Pierce; the appointment was made and the letter was executed for the defendant Corporation by the President of said Corporation, whose name was Wilson.

The plaintiff did not sign this letter nor did he sign any other writing concerning his contract of employment as Assistant Factory Representative.

The plaintiff's third contract with the defendant Corporation was that made concerning his appointment as Factory Representative and it is this contract which he says was breached. This is the contract referred to in the Issues submitted to the jury and plaintiff's rights against the defendant Corporation depend upon this contract. Plaintiff began to serve as Factory Representative on January 1, 1950, under the letter of December 16, 1949 which we have mentioned; and this letter was the only writing made concerning this appointment. It is much more detailed than the letter of February 14, 1949 appointing plaintiff Assistant Factory Representative. It described the plaintiff's appointment as Factory Representative as a 'promotion'; prescribes the territory within which he shall serve (24 Texas counties) and styles this territory the Tyler, Texas territory; fixes his compensation at a 'salary' of $85 a week plus a commission, also styled 'overwriting', graduated according to the value of sales made, which, the testimony shows, were those made by the dealers operating in his territory. Some of his duties were stated but not all; the testimony shows that a function of a Factory Representative was to supervise, work with, and assist his Assistant Factory Representatives in the performance of their own functions. He was simply a more important agent of the defendant Corporation than was the Assistant Factory Representatives, charged with coordinating and promoting the defendant Corporation's business within a larger territory. The only...