Brown v. Dupuy

• Citation: 4 F.2d 367
• Decision Date: 11 December 1924
• Docket Number: No. 3452 and 3453.,3452 and 3453.
• Parties: BROWN et al. v. DUPUY. O-SO-EZY PRODUCTS CO. v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

4 F.2d 367 (1924)

BROWN et al. v. DUPUY.

O-SO-EZY PRODUCTS CO. v. SAME.

Nos. 3452 and 3453.

Circuit Court of Appeals, Seventh Circuit.

December 11, 1924.

Joseph B. Lawler, of Chicago, Ill., for appellants.

J. A. McKeever, of Chicago, Ill., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

This appeal is to reverse a decree for $16,000 awarded appellee for damages because of a wrongful discharge.

As early as January 2, 1917, appellee, who for six years had been a salesman for the Channell Chemical Company, a manufacturer of floor polishing mops, was hired by appellant Channell for a period of ten years from January 1, 1917, as sales manager for a concern owned by Channell, the O-So-Ezy Products Company, a Michigan corporation. Channell made a memorandum, which he handed to appellant Brown, president of that corporation and Channell's representative, telling Brown to make a written contract with appellee. Channell left Chicago on January 8th and did not return until two or three days before appellee's discharge on February 20, 1917. Brown on the 6th, 11th, and 16th of January submitted drafts of a contract to appellee, and that of the 16th was executed on that date. In addition to the provisions of the contract, Channell had agreed that appellee should be vice president of the company and he was elected vice president of the O-So-Ezy Products Company of Illinois, which had taken over the business of the Michigan corporation.

So far as here material, the contract, following Channell's agreement, provided:

"First. The party of the first part hereby employs the party of the second part as general sales manager and the party of the second part does hereby accept such employment of general sales manager, with full power and authority of employment and discharge of selling force.

"Second. The party of the second part hereby agrees to devote his entire time, attention, and abilities to his duties as sales manager, and to the sales of the products of the party of the first part, and to that end shall travel in such domestic territory or foreign countries as the party of the first part may prescribe from time to time for the purpose of increasing sales of products of party of the first part.

* * * * *

"Eighth. It is understood and agreed that this contract shall commence as of January 1, 1917."

During Channell's absence, investigation was made of rumors that pointed to appellee as the organizer of a competing mop concern, and on the afternoon of the day of appellee's election as vice president, Channell, who seems to have gone to New York and back between that date and the date of his return from abroad, called appellee into his office, and, in appellee's language, charged him with a conspiracy to ruin his (Channell's) business and demanded a surrender of the contract.

The substance of appellee's admissions as to what he had done is that on January 7, 1917, he attended a meeting, at which were present Scheinfeldt, Henning, Perkins, and Peter Brown, all employees of the Channell Chemical Company; that they discussed the merits of an oil Henning had brought from New York; "we thought a company might be formed to manufacture that cotton oil and manufacture mops and polishes;" that was the same business that the O-So-Ezy Products Company and the Channell Chemical Company were in; that on January 10th he subscribed for $2,000 stock; that he had a meeting, with the same men, in regard to the formation of a company other than that for which he worked; he admitted seeing Exhibit 1, a proposed product carton with the word "Du-Shine" on it, for the new concern. He was present at another meeting on January 11, 1916. He said he asked Hahn, sales manager of the Channell Chemical Company, to take stock in the new corporation. Channell testified that appellee told him that "the only reason I went to these meetings and discussed it with the other men was so that I would have information that I could come to you with and let you know who your employés were who were working to disrupt your business." Appellee has in no way denied that statement.

The foregoing evidence is wholly uncontroverted, but appellee says that was all done before the written contract was signed, and it is urged that he had the right to do what he did because he did not know whether the contract would be signed. There is also in the record the testimony of four witnesses,...