Irving v. Goodimate Co.
| Decision Date | 29 November 1946 |
| Citation | 320 Mass. 454,70 N.E.2d 414 |
| Parties | ED IRVING v. THE GOODIMATE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 28, 1946.
Present: FIELD, C.
J., DOLAN, RONAN WILKINS, & SPALDING, JJ.
Frauds, Statute of. Contract, Of employment, What constitutes, Performance and breach. Letter. Evidence, Relevancy and materiality. Practice, Civil, Exceptions: general exception; Discretionary control of evidence; Requests, rulings and instructions. Damages, For breach of contract. Words, "Signed."
A finding of breach by an employer of a contract of employment of a salesman for a certain period at a rate of commission on sales higher than he had previously received was warranted by evidence that before the end of the specified period the salesman ceased to continue in the employment because of the employer's refusal to pay the increase in commission on any of the sales made by the salesman during such period.
A letter written by an employer to his salesman in 1939, referring to "the . . commission we spoke about" and stating that "for 1940 and after we will give you" a higher rate of commission, and a letter from the employer to the salesman in 1940, which stated that it was "to confirm the talk we had" and that "at once and for the coming year" the salesman was to cover certain additional territory and to "receive full credit" for it were, within the statute of frauds, G. L. (Ter. Ed.) c. 259,
Section 1, Fifth, memoranda sufficiently stating the essentials of an oral contract of employment for 1940 and 1941 at the higher rate of commission.
Evidence warranted a finding that a letter on the letterhead of a corporation, having at its end the name of the corporation in typewriting, without a written signature, and in its lower left hand corner the initials of an officer of the corporation, was by authority of the corporation written by such officer and by him signed with the typewritten signature as its signature; and upon such a finding the letter would be "signed by" the corporation within the statute of frauds, G. L. (Ter. Ed.) c. 259, Section 1, Fifth. Letters of a corporation, signed only with its typewritten name in April,
1941, in the circumstances were competent to show the manner in which it sometimes signed letters as bearing upon the genuineness of another letter, similarly signed in October, 1939, which was material to the issues involved.
A general exception to the admission of evidence must be overruled if the evidence was competent for any purpose. The order of proof at a trial lies in the discretion of the trial judge.
In an action by a former employee of the defendant for wrongful termination of the employment, evidence as to what the plaintiff would have earned during the remainder of the period of employment specified in the contract of employment if the employment had not been wrongly terminated by the defendant and also as to the plaintiff's efforts to secure work during the remainder of that period, was competent on the issue of damages even though it related to events occurring after the commencement of the action.
There was no error in the refusal of a request for ruling based on an assumption of a finding of certain stated facts favorable to the requesting party on a material issue, without mention of facts which bore on the same issue and which also could have been found on the evidence and were unfavorable to the requesting party.
CONTRACT. Writ in the Superior Court dated May 14, 1941. The action was tried before Warner, J.
J. Saklad, (H.
J. Levi with him,) for the defendant.
S. Abrams, (W.
J. Good with him,) for the plaintiff.
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 president 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: 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 latter 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 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 . Lane v. Epinard, 318 Mass. 664 .
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 . Allen v. Williams Motor Sales Co. 277 Mass. 295 . Nickerson v. President & Fellows of Harvard College, 298 Mass. 484 . Beaver v. Raytheon Manuf. Co. 299 Mass. 218 . 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 . Mead v. Parker, 115 Mass. 413 . Lee v. Butler, 167 Mass. 426 . Harrigan...
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