Hiller v. Submarine Signal Co.

• Decision Date: 31 March 1950
• Citation: 91 N.E.2d 667,325 Mass. 546
• Parties: HILLER v. SUBMARINE SIGNAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 546

91 N.E.2d 667

HILLER v. SUBMARINE SIGNAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1950

Argued Nov. 8 1949.

J A. Daly, Cambridge, for plaintiff.

P. B. Buzzell Boston, for defendant.

Before QUA, C. J and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.

WILLIAMS, Justice.

This is a bill in equity for an accounting of commissions alleged to be due the plaintiff as sales representative of the defendant, a corporation engaged in the manufacture and sale of maritime apparatus and equipment. The plaintiff was employed from December 1, 1932, until January 8, 1941, under a written contract of employment which provided that his 'representation shall apply in respect of shipping to all ships (other than those owned, controlled or operated by any department of the United States government) which are owned or chartered by persons, firms, or corporations having their head offices in Wilmington and San Pedro, California. * * *' By a letter from the defendant dated January 13, 1933 the territory of the plaintiff was somewhat extended, and in another letter of the same date he was advised that 'As regards Newport Bay and San Diego, we have no representative in mind at present whom we wish to handle this territory. Pending the appointment of a representative for this territory, we should be glad to allow you the same commission as stipulated in your contract on any business which you may be able to obtain in these two ports.' In reference to compensation the contract provided that 'During the life of this contract the company shall pay the representative a commission of five (5%) per cent of the sale price of such apparatus. * * * It is agreed that the representative shall become entitled to commissions as provided in this paragraph only if and when and to the extent to which the payments on account of the purchase of apparatus are actually collected and received.'

A substantial part of the defendant's business on the Pacific Coast consisted in the manufacture and sale of fathometers for vessels engaged in tuna fishing. Because of the cost of this apparatus few, if any, sales were being made. After the execution of the plaintiff's contract the defendant changed its method of selling this apparatus by arranging to lease the equipment at a rental of $60 a month and to give the lessee an option to purchase the apparatus at a stated price within a period of three years. After this change the plaintiff's contract was modified by a letter dated December 31, 1934, which read: 'We are proposing * * * to pay you during the life of your contract a commission of 5% on the received fathometer rentals derived from leases you obtain in your territory computable twice each year, December 31st and June 30th. If a sale develops from any of these leased apparatus we will, of course, pay you 5% commission of the sales price after payment is received, deducting therefrom the commission already paid you on the relevant rentals.' Prior to the termination of his duties as representative in the Newport Bay-San Diego area which occurred on January 1, 1938, the plaintiff had negotiated leases on twenty vessels in that area, and prior to January 8, 1941, had negotiated leases on fifteen vessels in his regular area. After December 7, 1941, the United States navy took over by charter or purchase many of the boats which had been equipped with the defendant's fathometers during the plaintiff's 'representation,' and thereafter purchased the leased equipment from the defendant. During the term of his employment the plaintiff did promotional work which could be found to have eventually resulted in sales of apparatus installed on vessels constructed by two large shipyards in the Pacific area for the United States maritime commission.

The plaintiff contends that: 'I. He is entitled to commissions on all rentals received from leases of apparatus procured by him before January 8, 1941. II. In any event he has not been fully paid for rentals received prior to January 8, 1941. III. He is entitled to commissions on sales of fathometers taken over by the navy. IV. He is entitled to compensation for the fair value of his work with the shipyards.' It is undisputed that the defendant owes the plaintiff for commissions earned prior to the termination of the contract in the sum of $352.49. This amount has been tendered by check and has been refused by the plaintiff. It is also undisputed that a commission amounting to $91.29 has been overlooked by the defendant and is due the plaintiff.

The case was submitted to a judge of the Superior Court on agreement as to certain facts, certain exhibits in the form of written...