Elwell v. State Mut. Life Assur. Co.

• Decision Date: 25 May 1918
• Citation: 119 N.E. 794,230 Mass. 248
• Parties: ELWELL v. STATE MUT. LIFE ASSUR. CO. SAME v. WILLIAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 248

119 N.E. 794

ELWELL

v.STATE MUT. LIFE ASSUR. CO.

SAME

v.WILLIAMS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1918.

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Actions by Fred S. Elwell against the State Mutual Life Assurance Company and William G. Williams, wherein judgments were ordered for plaintiff. On report to the Supreme Judicial Court. Judgments ordered entered for plaintiff.

Dunbar, Nutter & McClennen and Edward F. McClennen, all of Boston, for plaintiff.

Herbert Parker and Chas. F. Rowley, both of Boston, for defendants.

BRALEY, J.

By stipulation of the parties the auditor's findings of fact have been accepted as final ‘except as it appears from the record itself that such findings are not supported by competent evidence.’ But as the auditor's rulings upon evidence do not appear to have been erroneous, we come to the merits of the controversy. The plaintiff having moved for judgment on the report in which all questions at issue have been decided in his favor, the defendants severally asked the presiding judge to rule as ‘matter of law that the plaintiff's motion for judgment in accordance with the auditor's report must be denied,’ and that ‘upon the evidence reported, by the auditor, and upon the findings of fact made by the auditor in his report, the defendants are entitled to judgment.’ The requests were denied, and the judge, having found and ordered judgment for the plaintiff, reported the cases for the determination of this court, which is to order ‘judgment to be entered for the plaintiff if the same be warranted in law, otherwise such judgment or order to be entered * * * as law and justice may require.’ The plaintiff as a subordinate agent solicited life insurance for the defendant company under two contracts in writing, the first of which need not be reviewed, but the terms of the second become important in view of the auditor's findings. It was made between the plaintiff and Williams & Jones, the defendant company's general agent, and among other provisions established the plaintiff's compensation for services on a percentage basis ‘for first year insurance,’ and also on all renewals. But Jones having resigned the defendant Williams succeeded as the company's general agent, and continued as such to the date of the respective actions. The auditor reports that after the retirement of Jones while no written contract was entered into between the plaintiff and Williams the plaintiff continued as before ‘to solicit insurance for the company down to July, 1909, when he was discharged by a letter of dismissal signed by Williams as the company's general agent,’ and after some correspondence, and at least one interview between the plaintiff and the company, the company confirmed his action. It is stated in the letter of discharge:

‘While you had no legal claim for commissions under this contract after the termination of the general agency of Williams & Jones, I have continued to allow you commissions since that time and shall allow you in full settlement of all your caims under this contract renewals for five years from August 15, 1909, the date of termination as provided for therein.’

And the auditor has found that the commission on all renewal premiums were duly paid until August 15, 1914, on all policies procured by the plaintiff. But as no commissions have since been paid these actions are brought to recover commissions claimed to have thereafter accrued. It is not contended by the plaintiff that the commissions were to be paid during the life of the respective policies but he relies upon an oral contract with the defendants. The auditor's findings which are amply supported by the evidence recited, show that after Williams became the sole agent instead of ‘making out a new contract’ in writing, ‘the provisions of the Williams & Jones agreement were to continue in force after the agency of Williams & Jones had ceased and were thus to define the relations between the plaintiff and the defendant Williams after that time.’ While it was said in the letter of dismissal that the plaintiff ‘had no legal claim for commissions under this contract after the termination of the general agency of Williams & Jones,’ the auditor says:

‘That statement is probably true if applied to the Williams & Jones contract alone without taking into consideration any new contract made by Williams with the plaintiff after the Williams & Jones agency ceased.’

But it is plain that some such new contract was made thereafter, and that under it Williams, as he said in his letter, ‘continued to allow * * * commissions since that time to the plaintiff.’ The question is one of fact, and the oral contract found by the auditor is to be deemed and treated as the same in terms and effect as if the Williams & Jones contract had been redrafted with the omission of the name of Jones. It is supported by a sufficient consideration, namely, services to be rendered by the plaintiff, and it was not terminable at the will of the defendant Williams or by the company which also can be held for reasons to be subsequently stated. Rowe v. Peabody, 207 Mass. 226, 234, 93 N. E. 604, and cases cited. It could be ended only in accordance with its provisions. By article 10, if the plaintiff should ‘commit any misdemeanor’ he forfeited any further commissions. The auditor reports that he has not been guilty of any misconduct at common law or under any statute which would constitute a misdemeanor. By article 11 the contract might be terminated if the plaintiff left the agency of the company to engage in other business, or became...