Carson v. Hosiery Co.

• Decision Date: 10 December 1900
• Docket Number: 113-1900
• Citation: 15 Pa.Super. 476
• Parties: Carson v. Hosiery Company
• Court: Pennsylvania Superior Court

15 Pa.Super. 476

Carson v. Hosiery Company

No. 113-1900

Superior Court of Pennsylvania

December 10, 1900

Argued October 25, 1900

Appeal by plaintiff, in suit of John W. B. Carson against West Branch Hosiery Company, from judgment of C.P. Northumberland County-1897, No. 478, on verdict for defendant.

Assumpsit. Before Savidge, P. J.

It appears from the record that plaintiff was employed by defendant company as salesman under a contract in writing and was discharged from his employment before the expiration of the term agreed upon, and subsequently brought this action for $ 625.

It appears from the evidence that the contract, which was in the form of a letter from plaintiff to defendant, contained the following language:

" I am to call on the jobbing or wholesale trade and such retail trade as in my judgment will not conflict with my wholesale customers, and as often as deemed necessary to advance the interests of the West Branch Hosiery Company; and I further agree to call at any time upon any customers in my territory that said company may desire without any expense to said company."

The contract was for two years, and after having been in effect one year, plaintiff received a letter from defendant as follows:

" We want you to go to Albany, New York, leaving Philadelphia so that you will be in Albany sometime Monday, the 24th inst. We want you to notify us when you leave Philadelphia and also advise us of your arrival at Albany, as we want to send you special instructions upon your arrival there. While there see all the trade, and from there go as follows: Albany to Utica Utica to Oswego, Oswego to Courtlandt, Courtlandt to Ithaca Ithaca to Elmira, Elmira to Milton. Our haste in this matter is due to correspondence which may lead to considerable business, and we want you there."

Plaintiff having refused to comply with this order, he was discharged by defendant company.

[At the trial the court instructed the jury to find for the defendant.]

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned among others was in instructing the jury to find a verdict in favor of defendant.

Affirmed.

E. O. Michener, for appellant. -- The rule seems to be that the court will not construe a written contract where the parts in dispute are expressed in words of more than one meaning. Such words create an ambiguity, and their construction becomes a mixed question of law and fact, and the question of fact must be determined by the jury: Ford v. Buchanan, 111 Pa. 31.

It is submitted that the defendants had no right to discharge the plaintiff from their employment, under the circumstances, for the following reasons:

1. There was no refusal on his part to do and perform any service that the defendants had a right to call upon him to perform.

2. That the defendants had no right to call upon the plaintiff to make the trip mentioned in their letters, without specifically designating the customers whom they desired him to visit.

3. Because the evidence shows that part of the district to which he was directed to go had just been gone over, and that it was unreasonable for him to be required to go over it again so soon.

4. If there is any doubt as to whose judgment was to be exercised in determining how often it might be necessary to call upon certain parties, in order to advance the interests of the defendant company, then, as the contract is wholly silent upon the question, it was for the jury to determine under the evidence; and upon this point the uncontradicted evidence of the plaintiff was that the agreement between them gave him the discretion, and not the defendant company.

5. Because the evidence showed that the only ground for the discharge of the plaintiff was his failure to obey the instructions contained in the letters of May 21 and May 22; and as the defendants had no right under the contract to give the plaintiff any such instruction, his neglect to comply with this order was not sufficient justification for his discharge.

Wm. H. Hackenberg, for appellee. -- An employer may not without cause discharge an employee who has contracted to serve a specified term; but when there is any misconduct inconsistent with the relation of master and servant, the master has an undoubted right at any time to put an end to the contract, and what is a sufficient reason for dismissal is a question of law for the court: Matthews v. Park Brothers, 146 Pa. 386.

Faithful service is a condition precedent to the right of a servant to recover wages; misconduct inconsistent with the relation of master and servant will justify the master in putting an end to the contract: Singer v. McCormick, 4 W. & S. 265; Matthews v. Park Brothers, 146 Pa. 384; Henderson v. Hydraulic Works, 9 Phila. 100; Allentown Iron Co. v. McLaughlin, 24 W. N.C. 343.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

The plaintiff was employed by the defendant company as a salesman under a contract in writing, was discharged from said employment before the expiration of the term agreed upon, and subsequently brought this action. He does not print his statement, and we are unable to determine from the record as presented in the paper-book whether he seeks to recover certain instalments of his salary becoming due after his discharge, or the entire damage arising from an alleged improper discharge from his employment. When the court below gives binding instructions against a plaintiff, he ought upon his appeal to print the statement of his cause of action as presented to the court below, in order that the question upon which the court passed may be made plain. In the present case, however, the principles involved in the question passed upon are equally applicable in an action for salary upon the contract and an action for damages for the violation thereof.

There was no dispute as to any fact material to the disposition of the questions involved. The contract was in writing, there was no ambiguity upon its face, and there was no evidence which would have warranted a finding that any word therein used had, with regard to that particular subject-matter, a technical meaning different from that which it ordinarily conveyed. The construction of this contract and the ascertainment of the rights of the parties thereunder was for the court. There was no dispute as to the fact of the discharge before the expiration of the term of service, nor that the plaintiff had pursued the course of action for which the defendant company asserted the right to discharge him. The question whether under the written agreement and the undisputed facts there was a sufficient reason for the dismissal of the plaintiff was a question of law for the court: Matthews v. Park Bros., 146 Pa. 384; 159 Pa 579; Gallagher v. Wayne Steam Company, 188 Pa. 95. The plaintiff had received from his employer a written order to be in Albany upon a certain day and there see all the trade; from there to proceed to Utica, Oswego, Courtlandt, Ithaca, Elmira and Milton. He replied to...