J.E. Hanger, Inc. of Washington, D.C., v. Fitzsimmons

Citation273 F. 348
Decision Date02 May 1921
Docket Number3468,3469.
PartiesJ. E. HANGER, Inc., OF WASHINGTON, D.C., v. FITZSIMMONS. FITZSIMMONS v. J. E. HANGER, Inc., OF WASHINGTON, D.C.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Submitted April 4, 1921.

Appeal from the Supreme Court of the District of Columbia.

Milton W. King, Theodore D. Peyser, and L. Koenigsberger, all of Washington, D.C., for plaintiff.

J. S Easby-Smith and Ralph B. Fleharty, both of Washington, D.C for defendant.

ROBB Associate Justice.

Fitzsimmons appellee in No. 3468 and appellant in No. 3469, brought suit in the court below against J. E. Hanger, Incorporated, appellant in No. 3468 and appellee in No. 3469; the declaration being in two counts, the first of which was for the recovery of loss of profits and commissions that might have been earned under the contract alleged to have been breached by the corporation, and the second count for expenses and reasonable compensation between the date of the contract and its alleged breach by the corporation. The court withdrew from the consideration of the jury the first count, but permitted a recovery on the second count.

The contract is in writing and in substance provides, as stated in the brief for Fitzsimmons, 'for the employment of the plaintiff' as agent of the corporation to sell to the Russian government or others artificial limbs manufactured by the corporation; compensation being dependent upon the securing of a contract or loan from the government of Russia or orders from any source 'in the Russian empire.' The contract does not specify the time during which it shall continue.

In this contract it is provided that the agent must devote his entire time to the interests of the manufacturer, under its direction 'or its authorized representative in Russia ' It appears that prior to the signing of this contract the corporation telegraphed Fitzsimmons, delaying 'final conclusion on account absence from city for a few days of the party who would be expected to make the trip to Russia in the event the deal (contract) is closed. ' The party mentioned in this telegram was a Mr. Thomas, who was present when the contract was entered into. Over the objection and exception of the corporation, there was introduced in evidence correspondence following the signing of the contract, which clearly showed that the understanding of the parties as to the meaning of the contract was that Thomas should accompany Fitzsimmons to Russia as the corporation's 'authorized representative' there. The correspondence further showed that arrangements were completed by Fitzsimmons, with the concurrence of the corporation, for the passage to Russia of Thomas and himself. Thomas, who was an expert in fitting artificial limbs, had prepared to take with him to Russia several crates of artificial limbs, together with tools and materials 'for doing necessary work in adjusting and fitting legs to prospective persons. ' Finally the corporation notified Fitzsimmons that Thomas was at their headquarters and would 'be ready to sail on 29th' (July). Fitzsimmons arranged for the passage, but Thomas did not appear, and Fitzsimmons was compelled to pay 10 per cent. of the amount of the passage money. After sending several telegrams and a letter to the...

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12 cases
  • Beatty v. Chicago, B. & Q. R. Co., 1915
    • United States
    • United States State Supreme Court of Wyoming
    • December 10, 1935
    ...period is terminable at the will of either the employer or the employee. 39 C. J. 71; Mullaney v. Goss, (Vt.) 122 A. 430; Hanger Inc. v. Fitzsimmons, 273 F. 348; Ashley Company v. Cunningham, (Ark.) 196 S.W. Kansas Pacific Company v. Roberson, 3 Colo. 142. Indefinite employment is terminabl......
  • Boatright v. Steinite Radio Corp., 266.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 12, 1931
    ...Coast Borax Co., 26 Or. 302, 38 P. 127, 129; Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 271 P. 878; J. E. Hanger, Inc., v. Fitzsimmons, 50 App. D. C. 384, 273 F. 348; Watson v. Gugino, 204 N. Y. 535, 98 N. E. 18, 39 L. R. A. (N. S.) 1090, Ann. Cas. 1913D, 215; Fulkerson v. Western......
  • Coyne v. Superior Incinerator Co. of Texas, 149.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 6, 1936
    ...political influence, and the contract was upheld against the charge that it was contrary to public policy. So in J. E. Hanger, Inc., v. Fitzsimmons, 50 App.D.C. 384, 273 F. 348, a contingent contract to sell artificial limbs to the Russian government was held valid where the services sold a......
  • Hablas v. Armour and Company, 16028.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 9, 1959
    ...outside Illinois supporting this view, see: Harper v. Southern Coal & Coke Co., 5 Cir., 73 F.2d 792; J. E. Hanger, Inc. of Washington, D. C. v. Fitzsimmons, 50 App.D.C. 384, 273 F. 348; 35 Am.Jur. Master & Servant, §§ 26 and 34. In the White case, supra, the Illinois court states (at page 2......
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