Hughes v. Gross

• Decision Date: 19 May 1896
• Citation: 43 N.E. 1031,166 Mass. 61
• Parties: HUGHES v. GROSS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 61

43 N.E. 1031

HUGHES v. GROSS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1896

COUNSEL

John Woodbury and John M. Merriam, for plaintiff.

E.N Hill, for defendants.

OPINION

HOLMES J.

This is an action of contract for refusing to employ the plaintiff a second year. The plaintiff had a verdict, and the case is here on exceptions. The original contract was in writing, and was made with two partners, Gross and Strauss, for one year from April 25, 1892, with a conditional right of renewal on the side of the plaintiff for one year more. On November 1, 1892, during the first year of the plaintiff's employment, Strauss died, and the business was carried on by Gross. The first question raised by the exceptions is whether Strauss' death ended the contract. At the end of December the plaintiff received a notice from Gross that she would not be employed beyond the first year stating causes of dissatisfaction. There was an answer from the plaintiff, and a reply by Gross. Exceptions were taken to the admission of the plaintiff's letter in evidence, and to the exclusion of evidence of other causes of dissatisfaction besides those mentioned in the notice. On February 1, 1893, the defendant Sommers became a partner in the business with Gross, the new firm taking the assets and assuming the liabilities of the old one. Thereafter the plaintiff was paid out of the funds of the new firm, and, according to the plaintiff's testimony, was referred to Sommers for further discussion of her relations with the firm, and had several interviews with him, in which he wanted to terminate the contract. Another exception is to the refusal to direct a verdict for Sommers.

We are of opinion that it could not be ruled as matter of law, that the contract of service was dissolved by the death of a partner. We have no occasion to criticise the decisions in some of our states and in England and Scotland, where an opposite result was reached by a majority of the judges with reference to different kinds of business from the present, except to remark that the argument put forward in Scotland and elsewhere, that the only contracting party was the firm, and that the firm had ceased to exist, does not agree with the common law. Tasker v. Shepherd, 6 Hurl. & N. 575; Hoey v. MacEwan, 5 Ct.Sess.Cas. (3d series) 814, 815; Griggs v. Swift, 82 Ga. 392, 9 S.E. 1062; Greenburg v. Early, 30 Abb.N.C. 300, 303, 23 N.Y.Supp. 1009. The common law does not know the firm as an entity. Hallowell v. Bank, 154 Mass. 359, 363, 28 N.E. 281. A contract with a firm is a contract with the members who compose it. A joint contract to employ the plaintiff is not ended necessarily by the death of one of the contractors (Martin v. Hunt, 1 Allen, 418), and there is no universal necessity that death should have a greater effect when the joint contractors are partners (Fereira v. Sayres, 5 Watts & S. 210). If the death naturally would put an end to the business, as it so frequently does, very possibly it might end the employment. We have no need to consider what would be the result if in fact no further business was done, except to wind up the affairs of the firm, as was the case in Griggs v. Swift, supra. But this business went on without a break, and both parties seemed to have assumed that the plaintiff's contract was not ended by the death of Strauss.

But the foregoing suggestions are not enough to lay a foundation for the liability of Sommers, even assuming that there was evidence warranting the inference that he was content to be bound unless Gross escaped, and that he made an oral contract on the terms of the written agreement. The declaration is on the written instrument, and the refusal to direct a verdict for Sommers must be taken as made...