Irving v. Goodimate Co.

• Decision Date: 29 November 1946
• Citation: 320 Mass. 454,70 N.E.2d 414
• Parties: IRVING v. GOODIMATE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 454

70 N.E.2d 414

IRVING

v.GOODIMATE CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1946.

Exceptions from Superior Court, Bristol County; Warner, Judge.

Action for commissions and for damages for breach of contract of employment by Ed Irving against the Goodimate Company. The defendant excepted to the denial of a motion for a directed verdict on each count, to the admission of evidence, and to the refusal to grant three requests for instructions to the jury.

Exceptions overruled.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

S. Abrams and W. J. Good, both of Boston, for plaintiff.

J. Saklad and H. J. Levi, both of Boston, for defendant.

RONAN, Justice.

The plaintiff, a salesman, who had been employed by the defendant, a manufacturer of clothing, for several years prior to May 1941, had a verdict upon the first count of his declaration for a balance alleged to be due for commissions earned in 1940, upon the second count for commissions earned during 1941 before May, 1941, and upon the third count for damages for breach of his contract of employment. The defendant excepted to the denial of a motion for a directed verdict on each count, to the admission of evidence, and to the refusal to grant three requests for instructions to the jury.

There was evidence that the plaintiff last entered the employment of the defendant in 1935, selling clothing in Massachusetts, Rhode Island and Connecticut, for which he received a commission of four per cent on all sales made by the defendant to buyers in this territory. In April, 1938, Rubin Lipsky, the rpesident and general manager of the defendant, who was authorized to hire and discharge employees, suggested to the plaintiff that he move his residence from Philadelphia, Pennsylvania, to Boston in order to be better able to serve the defendant's customers who were located in these three States. The plaintiff replied that he would be willing to move to Boston if his commission were increased to five per cent, and Lipsky agreed to pay this rate after the plaintiff had resided for a year in Boston. The plaintiff established his residence in Boston. He saw Lipsky in 1939 at the defendant's factory in Philadelphia and requested a definite understanding with reference to the increase of his commission, but Lipsky went out and the plaintiff, after waiting two hours for Lipsky to return, left for Boston. A few days thereafter, he received from Lipsky a letter dated October 18, 1939, which was upon the letterhead of the defendant. After apologizing for not seeing the plaintiff before he left the factory and referring to the fact that the plaintiff was seventh on the list of salesmen in the amount of sales, the letter continued: ‘Regarding the 5% commission we spoke about-here is what we agree to do. You go along as you have on 4% and for 1940 and after we will give you an additional 1% on all shipments that go to the territory you cover. You will get the 1% at the end of the year or every six months, whatever you wish.’ This letter bore no other signature than the typewritten words ‘The Goodimate Company.’ It also bore the symbol ‘RL/s' in the lower left-hand corner of the page, where the initials of the one dictating and the one typing the letter are usually found. The plaintiff talked with Lipsky a few days after the receipt of this letter, and accepted the offer. The letter again apologized for keeping the plaintiff waiting at the factory, and stated ‘that, now he had satisfied the plaintiff, the plaintiff should just go ahead and do his day's work.’

Isadore A. Lipsky, the defendant's secretary and treasurer, who was in charge of shipping and distributing the defendant's goods, told the plaintiff that he was going to extend the plaintiff's territory by including Maine and New Hampshire. The plaintiff received by mail a letter dated November 4, 1940, upon the defendant's stationery, which stated that ‘This is to confirm the talk we had. Starting at once and for the coming year you are to cover the following states in addition to your present territory Maine New Hampshire. You will receive full credit for all business coming from the additional territory just as soon as we receive a first order from the new territory.’ The only signature on this letter consisted of the typewritten words ‘The Goodimate Company.’ These words appeared at the end of the letter. In the lower left-hand corner was the symbol ‘IAL:B.’ After the receipt of this letter the plaintiff continued as a salesman in the territory as extended, and was paid compensation upon the sales that he made until April, 1941. The plaintiff began in March, 1941, to insist upon the payment of the additional one per cent upon his commissions earned since January 1, 1940. The defendant neglected to pay this increase. The jury could find that the plaintiff ceased to continue in the defendant's employment about the first of May, 1941, because of the defendant's failure to pay this increase, although the defendant had reserved fifteen hundred suits and two thousand overcoats for sale by the plaintiff during the remainder of 1941, ‘which * * * [was] as much as * * * [the plaintiff] had sold the previous seasons.’ The evidence was sufficient to prove that, although the defendant had agreed to pay the plaintiff a commission of five per cent, it had refused to do so, and that the plaintiff was entitled to receive his commission at this rate for goods he had sold and also damages for breach of contract for his loss of earnings during that portion of 1941 which was subsequent to the breach. Dalton v. American Ammonia Co., 236 Mass. 105, 127 N.E. 504;Lane v. Epinard, 318 Mass. 664, 63 N.E.2d 463.

The defendant pleaded the statute of frauds, and contends that there was error in admitting the two letters of October 18, 1939, and November 4, 1940, because both were insufficient to prove the oral contract upon which the plaintiff relied and because neither letter was signed by the defendant.

The plaintiff's contract of employment was for more than a year and was unenforceable unless evidenced by a written memorandum containing the essentials of the oral contract. Williams v. Pittsfield Lime & Stone Co., 258 Mass. 65, 154 N.E. 572;Allen v. Williams Motor Sales Co., 277 Mass. 295, 179 N.E. 159;Nickerson v. President and Fellows of Harvard College, 298 Mass. 484, 11 N.E.2d 444, 114 A.L.R. 414;Beaver v. Raytheon Mfg. Co., 299 Mass. 218, 12 N.E.2d 807. The first letter continued the existing employment of the plaintiff for 1940 and after, at an increased compensation. The second letter extended his employment through 1941, at the same time extending his territory. Both letters could be found to be confirmations of the existing oral contract of employment and to contain all the essentials of the contract. Hurley v. Brown, 98 Mass. 545, 96 Am.Dec. 671;Mead v. Parker, 115 Mass. 413, 15 Am.Rep. 110;Lee v. Butler, 167 Mass. 426, 46 N.E. 52,57 Am.St.Rep. 466;Harrigan v. Dodge, 200 Mass. 357, 86 N.E. 780;Nickerson v. Bridges, 216 Mass. 416, 103 N.E. 939;Cousbelis v. Alexander, 315 Mass. 729, 54 N.E.2d 47, 153 A.L.R. 1108.

The statute of frauds, G.L.(Ter.Ed.) c. 259, § 1, Fifth, requires the memorandum to be ‘signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.’ One executing a document usually does so by signing his own name or, if he is unable to write, by making a mark, generally in the form of a cross. The words ‘written signature’ in a statute requiring such a signature are to be construed to mean that the signature ‘shall always be his own handwriting or, if he is unable to write, his mark.’ G.L.(Ter.Ed.) c. 4, § 7, Thirty-eighth. The statute of frauds, however, does not provide that the memorandum be executed by the written signature of the party to be charged, and the distinction betweena signing and a written signature has been pointed out with many illustrations in Finnegan v. Lucy, 157 Mass. 439, 32 N.E. 656. See also Assessors of Boston v. Neal, 311 Mass. 192, 197-200,400 N.E.2d 893.

A memorandum is signed in accordance with the statute of frauds if it is signed by the person to be charged, in his own name, or by his initials, or by his Christian name alone, or by a printed, stamped or typewritten signature, if in signing in any of these methods he intended to authenticate the paper as his act. Hawkins v. Chace, 19 Pick. 502;Sanborn v. Flagler, 9 Allen, 474;Walker v. Walker, 175 Mass. 349, 56 N.E. 601;Weiner v. Mullaney, 59 Cal.App.2d 620, 140 P.2d 704;Deep River Nat. Bank's Appeal, 73 Conn. 341, 47 A. 675;Prairie State Grain & Elevator Co. v. Wrede, 217 Ill.App. 407;Cummings v. Landes, 140 Iowa, 80, 117 N.W. 22;Pontrich v....