Jackman v. Military Publications, Inc., 15142.

• Citation: 350 F.2d 383
• Decision Date: 09 August 1965
• Docket Number: No. 15142.,15142.
• Parties: A. W. JACKMAN, Jr., Appellant, v. MILITARY PUBLICATIONS, INC.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

350 F.2d 383 (1965)

A. W. JACKMAN, Jr., Appellant, v. MILITARY PUBLICATIONS, INC.

No. 15142.

United States Court of Appeals Third Circuit.

Argued May 6, 1965.

Decided August 9, 1965.

Esther R. Sylvester, Philadelphia, Pa. (John F. Naulty, Philadelphia, Pa., on the brief), for appellant.

Harris Ominsky and Blank, Rudenko, Klaus & Rome, Philadelphia, Pa. (Henry J. Morgan, Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, HASTIE and FREEDMAN, Circuit Judges.

HASTIE, Circuit Judge.

This is an action for breach of contract brought in federal court under diversity jurisdiction and tried to the court sitting without a jury.

The plaintiff Jackman, a publisher's agent, sued the defendant, Military Publications, Inc., under a contract dated August 26, 1958. By this instrument Military Publications assumed the obligations of another publisher under a contract of December 15, 1957 between that publisher and Jackman. The subject matter of the contract was the production and sale of books, comparable to school year books, about and for members of training units at various military installations.

After full hearing the trial court made findings of fact and conclusions of law and entered judgment thereon for the defendant. A motion for a new trial was made and denied. The plaintiff appealed, but in his notice of appeal stated incorrectly that he was appealing from the order denying his motion for a new trial, instead of grounding his appeal on the final judgment. However, we shall disregard this formal mistake and consider the merits of the case as an appeal from the final judgment. Cromling v. Pittsburgh & L. E. R. R., 3d Cir. 1963, 327 F.2d 142, 144, n. 1; 6 Moore, Federal Practice, 1953, par. 59.151 at 3891-93.

The parties contracted that Jackman "is hereby employed and appointed as the sole and exclusive military representative in the sale of books and publications to be published by" Military Publications. It was provided that Jackman "shall receive a flat salary of $10,000.00 (Ten Thousand Dollars) per year". There also were provisions for the payment of certain commissions to Jackman on books sold.

The contracts said nothing about their duration or terminability. On May 15, 1959 Military Publications notified Jackman that the contract between them "is hereby terminated, effective immediately", but agreed to the payment of commissions for a short period. In fact, some additional payments were made to Jackman for more than a year; full salary through July 1959 and monthly payments of approximately $380 thereafter until September 1960.

The principal issue on appeal is whether, as the trial court found and held, this contractual arrangement was terminable at will.

The district court correctly found that the agreements constituted a contract of employment. The parties have properly recognized that this contract is to be interpreted in accordance with the law of Pennsylvania. The Pennsylvania rule concerning the termination of employment contracts is stated in Cummings v. Kelling Nut Co., 1951, 368 Pa. 448, 451, 84 A.2d 323, 325 as follows:

"The general rule is that when a contract provides that one party shall render services to another, or shall act as an agent, or shall have exclusive sales rights within certain territory, but does not specify a definite time or prescribe conditions which shall determine the duration of the relation, the contract may be terminated by either party

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