Cummings v. Kelling Nut Co.

• Decision Date: 13 November 1951
• Citation: 368 Pa. 448,84 A.2d 323
• Parties: CUMMINGS v. KELLING NUT CO.
• Court: Pennsylvania Supreme Court

84 A.2d 323

368 Pa. 448

CUMMINGS v. KELLING NUT CO.

Supreme Court of Pennsylvania.

November 13, 1951

Action by John A. Cummings against The Kelling Nut Company for remuneration allegedly due plaintiff under a parol contract of employment. The Court of Common Pleas of Allegheny County at No. 1346, January Term, 1948, Harry M. Montgomery, J entered judgment on verdict for plaintiff in sum of $3500 and refused defendant's motion for a judgment non obstante veredicto and defendant appealed. The Supreme Court, No. 141 March Term, 1951, Chidsey, J., held that evidence was insufficient to permit jury to find that plaintiff's employment was other than one terminable at will.

Judgment reversed and entered for defendant.

Ladner, J., dissented.

In action in assumpsit for remuneration allegedly due plaintiff under parol contract of employment under which plaintiff was allegedly employed as a salesman for defendant company's product, evidence was insufficient to sustain finding that plaintiff's employment with defendant company was other than one terminable at will.

William H. Eckert, William K. Unverzagt and Smith, Buchanan, Ingersoll, Rodewald & Eckert, all of Pittsburgh, for appellant.

William J. Kenney, Harton S. Semple and Rose, Eichenauer & Rose, all of Pittsburgh, for appellee.

Before DREW, C. J., and STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

CHIDSEY, Justice.

The plaintiff, John A. Cummings, instituted this action in assumpsit against The Kelling Nut Company, defendant, for remuneration allegedly due him under an oral contract of employment. A jury rendered a verdict for plaintiff in the sum of $3,500, and the court below, refusing defendant's motion for judgment non obstante veredicto, entered judgment on the verdict, from which this appeal is taken.

In March of 1934 plaintiff was employed orally by the defendant as a salesman for its product which consisted of processed assorted nuts, vended from electrical display cases which were placed with the retailer. He was to receive weekly commissions on rentals charged for the cases and on the gross sales of all nuts. His traveling expenses were his own obligation. Plaintiff was a graduate pharmacist who was engaged in selling a line of chocolates in the same territory assigned to him by the defendant, namely, western Pennsylvania and northern West Virginia. No period of employment was specified and he was permitted to continue his selling line of chocolates while in defendant's employ. After continuing in this employment for nine years, in March of 1943 he was discharged for reasons not related to the performance of his duties. The defendant by written notice discontinued the services of all of its salesmen as of March 29, 1943 with salary payable until April 10, 1943. This notice received by plaintiff, in substance and effect, gave as a reason for the company's action, the decrease in its manufacture and output occasioned by wartime restrictions imposed by the Office of Price Administration.

Plaintiff admits being fully paid for his services up to the date of his discharge and his suit is for commissions which he would have earned if he had not been discharged. He claims that his earnings in the first years of his employment were relatively small in comparison with his expenditures of time and money and that it was the intention of the parties that the employment continue for such a reasonable time as would enable plaintiff to be fairly compensated for the services and money he had expended in the furtherance of defendant's business. Kelling, the president of the defendant company, testified that he told plaintiff that the latter would be free to leave defendant at any time that he chose and that defendant could terminate his services at any time it chose and that no specific time was stated as to how long plaintiff should be employed. We are obliged, however, because of the verdict in his favor, to consider all facts and inferences from facts relating to the issues involved, most favorably to the plaintiff.

Plaintiff testified that when he interviewed Kelling, the defendant's president, the latter ‘ admitted that their business was very small at this time but a salesman coming with them would be building the business for himself; that the remuneration the first few years might not amount to much but in time I would be able to build a foundation for the future that would be just the same as being in business for myself without investment.’ ; that he, plaintiff, said he was interested but couldn't possibly give up the line that he had with the Durand Company, manufacturer of chocolates; that Kelling then said ‘ That is perfectly all right. We have other men in the South that have the same arrangement with us and we will go along and see how this works out.’

The general rule is that when a contract provides that one party shall render services to another, or shall act as an agent, or shall have exclusive sales rights within certain territory, but does not specify a definite time or prescribe conditions which shall determine the duration of the relation, the contract may be terminated by either party at will: Coffin v. Landis, 46 Pa. 426; Weidman v. United Cigar Stores Company, 223 Pa. 160, 72 A. 377; Jones v. Pittsburgh Mercantile Co., 295 Pa. 219, 145 A. 80; Slonaker v. P. G. Publishing Company, 338 Pa. 292, 13 A.2d 48; Price v. Confair, 366 Pa. 538, 79 A.2d 224; Lucacher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245. The burden is on the plaintiff in such cases to overcome the presumption by showing facts and circumstances establishing some tenure of employment: Jones v. Pittsburgh Mercantile Co., supra. The intention of the parties governs. One relying on the contract as providing for a reasonable length of time must establish something in the nature and circumstances of the undertaking which would create the inference that a definite or reasonable period of employment was actually contemplated by the parties.

According to plaintiff's testimony, in consummating the employment defendant's president Kelling, after agreeing that plaintiff retain his Durand Company chocolate line, said ‘ we will go along and see how this works out.’ This certainly indicated an experimental arrangement with either party free to terminate the employment at will. Plaintiff principally relies upon the above quoted statement made by Kelling during the course of the interview that the remuneration the first few years might not amount to much but in time plaintiff would be able to build a foundation for the future that would be just the same as being in business for himself.

Plaintiff would have this statement interpreted as a promise or guarantee that he would be retained until he had currently recovered by way of commissions remuneration over and above his traveling expenses sufficient to compensate him not only for present efforts but for his past efforts and expenses in the development of his territory. We cannot agree with such contention. Plaintiff undertook the employment upon its prospects and agreed to pay his own traveling expenses. The statement made by Kelling was nothing more than a ‘ puffing’ of the prospects. Employment is generally undertaken because of anticipated success therein and it is customary for the employer to paint a bright picture of future possibilities.

If such representations by the employer were to create an implied promise of continuous employment over any period of time, practically no employment would be terminable at will. If the employe obtains no promise of employment for a definite or reasonable length of time, he gambles on his retention and the probability that the employment will be continued if his services are satisfactory. On the other hand, he is free at any time to quit the job. Here plaintiff was retained and remained in his employment for nine years and in 1943 until his discharge in March of that year, his net earnings were at the rate of $550 per month. This justified defendant's prediction of lucrative possibilities in the undertaking but does not convert the prediction into a promise-especially such a promise as plaintiff asserts. Plaintiff's claim of continuity of employment would be more plausible if he had been required to forfeit the livelihood apparently obtained from his chocolate line. At no time during the employment interview did plaintiff request or suggest any period of employment. It is a fair conclusion that the parties designedly abstained from binding themselves to any permanency of the relationship, thus leaving plaintiff free to terminate the employment if it proved unpromising or too arduous when added to his other employment, and on the other hand leaving the defendant free to terminate the employment if plaintiff proved inefficient. At any rate there was insufficient proof of a mutual understanding to the contrary, and the jury should not have been permitted to render a verdict for plain...