Bolles v. S

• Decision Date: 27 July 1887
• Citation: 33 N.W. 862,37 Minn. 315
• Parties: BOLLES, v SACHS AND OTHERS, COPARTNERS, ETC., AND ANOTHER.
• Court: Minnesota Supreme Court

37 Minn. 315

33 N.W. 862

BOLLES,vSACHS AND OTHERS, COPARTNERS, ETC., AND ANOTHER.

Supreme Court of Minnesota.

July 27, 1887.

(Syllabus by the Court.)

A written agreement not showing upon its face mutuality of obligation, or other consideration, may be supported as a contract by another written contract made at the same time, and shown to have been a consideration for the former agreement.

The recital in a contract of a money consideration paid, does not exclude parol evidence of an additional consideration.¹

A contract for the employment of a person in a particular business as long as the latter may elect to serve being broken by the employer, the employe, having never fixed by his election the period of service, cannot recover substantial damages, the obligation violated being too uncertain.

One who voluntarily disables himself from performing specifically his contract becomes at once liable in damages.

Appeal from district court, Hennepin county.

T. W. Hammond and Smith & Reed, for Bolles, respondent.

A. B. Jackson, Shaw & Cray, and P. H. Gunckle, for Sachs and others, appellants.

DICKINSON, J.

Prior to September 26, 1885, the plaintiff and another person, as copartners, had been engaged at Minneapolis in the sale of bottled mineral water and other goods, which they had been accustomed to procure from the defendants. At that date, the partnership being indebted to the defendants to the amount of some $9,500, the plaintiff in behalf of his firm sold and assigned to the defendants all of their merchandise, trade fixtures, and accounts for the expressed consideration of $9,500. This was afterwards ratified by the plaintiff's partner. At the same time, and, as the plaintiff claims, as a part of the same transaction, the plaintiff and the defendants executed a further agreement in writing, dated on the same day, whereby, for the expressed consideration of the agreement of the plaintiff to conduct the business of the defendants, selling such goods at Minneapolis as provided in that instrument, the defendants agreed, for so long a time as the plaintiff might elect, to employ the plaintiff in that business; agreeing also that the plaintiff should have absolute and sole control of the business, and that the defendants would not employ any other agent or sell their goods to any other person. The defendants further agreed by this instrument to pay to plaintiff $2,000 out of the first moneys collected from the accounts of the firm of Bolles & Co. “this day transferred” to the defendants; and, as compensation for such employment, to pay to the plaintiff one-half of all the profits to be derived from the business conducted by the latter. “In consideration of the agreements of the second party hereinbefore set forth,” the first party, the plaintiff, agreed to conduct and manage the business to the best of his ability. No period was specified for the continuance of this service of the plaintiff. This action was brought for a breach of this contract, in that the defendants had not paid the $2,000 specified, and had refused to allow the plaintiff to conduct their business, so that he had lost the profits which he would have realized from it.

Upon the trial there was evidence going to show that the plaintiff had assumed to enter upon the performance of the business referred to; but the evidence was conflicting whether what he did was a faithful compliance with the duties referred to in the contract. On or about the tenth day of October the defendants formally discharged him. On the twenty-fourth of October the defendants sold the accounts assigned to them, the plaintiff having received $176 only of their proceeds. The cause was tried in November, 1886. The verdict awarded about $1,100 to the plaintiff on account of the alleged breach of the agreement respecting the plaintiff's employment, and (by direction of the court) the $2,000 specified, less the $176 paid.

It is claimed by the defendants that the agreement in respect to the plaintiff's employment was inoperative and void, because there was no mutuality of obligation. The period of service or agency was left expressly and entirely to plaintiff's election; and in view of this it is most reasonable to construe the plaintiff's engagement to manage the business to the best of his ability, etc., not as qualifying his right of election, but as meaning that, during such time as he may elect to carry on the business, he will do so to the best of his ability. There was not, then, any obligation on the part of the plaintiff to enter upon the employment; and, unless the agreement of the defendants to employ him is supported by some other consideration, it would not be obligatory upon them, but might be revoked before the other party had acted upon it. Tarbox v. Gotzian, 20 Minn. 139, (Gil. 122;)Campbell v. Lambert, 36 La. Ann. 35;Chicago & Great Eastern Ry. Co. v. Dane, 43 N. Y. 240. But if not revoked, and if executed on the part of the plaintiff, so that the defendants received the benefit of the plaintiff's performance, the agreement of the defendants would become obligatory. Andreas v. Holcombe, 22 Minn. 339; Grove v. Hodges, 55 Pa. St. 504.

We are, however, of opinion that the two instruments are to be read together as parts of an entire agreement. They bear the same date, and were executed at the same time, as is apparent from the case. The contract for employment refers to the accounts as that day transferred, and it is admitted by one of the defendants in his testimony that this agreement to pay the $2,000 was a consideration for the bill of sale which embraced the accounts. This evidence was admissible, notwithstanding the consideration clause in the bill of sale, “for and in consideration of $9,500, the receipt whereof is hereby acknowledged.” This does not exclude parol evidence of an additional or other consideration. McCrea v. Purmort, 16 Wend. 460, and cases cited; Goodspeed v. Fuller, 46 Me. 141, and cases cited; Rhine v. Ellen, 36 Cal. 362. And see Dayton v. Warren, 10 Minn. 233, (Gil. 185.) Reading the two instruments together as parts of one transaction, the agreement to employ the...