Kirkley v. F.H. Roberts Co.

• Decision Date: 08 July 1929
• Parties: KIRKLEY v. F. H. ROBERTS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 246

167 N.E. 289

KIRKLEY

v.F. H. ROBERTS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1929.

Exceptions from Superior Court, Suffolk County; Broadhurst, Judge.

Action by J. Ralph Kirkley against the F. H. Roberts Co. On defendant's exceptions. Exceptions overruled.

E. A. McLaughlin and W. J. Kelleher, both of Boston, for plaintiff.

C. W. Blood and W. Flaherty, both of Boston, for defendant.

WAIT, J.

The plaintiff sues at law for breaches of an agreement in writing which bears date January 28, 1905. The first count seeks recovery of damages for wrongful termination of the contract. The second seeks damages for breaches occurring during the life of the contract. The case is before us upon two bills of exceptions taken by the defendant; one for alleged errors relating to the first count, the other for alleged errors arising in the course of a second trial on the second count. In both, the defendant contends that erroneous rulings were made relating to evidence, and that requests for rulings and motions for directed verdicts were denied wrongfully. No exception is claimed to the instructions given to the juries.

[3] The contract was made between the plaintiff and F. H. Roberts Company, a Massachusetts corporation which was reorganized in 1908 and in 1911; but no contention is made that the later corporation is not liable if the original corporation would have been. The material provisions of the contract are as follows ‘[F. H. Roberts Company] promises and agrees to employ said Kirkley, * * * as its sales agent and to retain him in its employ as long as he shall faithfully and diligently perform the duties of his employment. Said [Kirkley] to sell upon a commission basis of ten per cent on all sales made by him or otherwise obtained in his exclusive territory, which territory of his, as defined, shall be such territory, as he said [Kirkley], shall acquire by his personal effort and diligence and which shall not conflict with other territory belong [sic] to, or obtained by other agents of said [F. H. Roberts Company]; payments by said [F. H. Roberts Company] to said [Kirkley] to be made monthly beginning March first of the current year. And said Kirkley on the other hand promises and agrees that he will enter the employ of said [F. H. Roberts Company] as commission sales agent and will faithfully and diligently perform the duties of his employment, and he further promises and agrees to give his sole and undivided attention thereto as long as this contract shall continue.’ At the time it was executed, the plaintiff was employed in Pennsylvania and New Jersey by third parties, and the company was seeking to extend its business beyond New England, except Rhode Island, and part of New York state where one other sales agent was at work. The plaintiff considering whether to leave his then employer and throw in his lot with the company was promised a written contract if he would go with the company. He decided so to do, and received this written agreement. Here was sufficient consideration for the promise of employment. Revere v. Boston Copper Co., 15 Pick. 351;Carnig v. Carr, 167 Mass. 544, 46 N. E. 117,35 L. R. A. 512, 57 Am. St. Rep. 488. The contract is not too indefinite. The nature of the work and the compensation to be paid are precise. The territory to become exclusively his depends upon future action; but a contract is not necessarily incomplete because some of its terms must be fixed at a future time or by subsequent events. Evers v. Gilfoil, 247 Mass. 219, 141 N. E. 926;Speirs v. Union Drop-Forge Co., 174 Mass. 175, 54 N. E. 497;Silver v. Graves, 210 Mass. 26, 95 N. E. 948;Williams v. Knibbs, 213 Mass. 534, 100 N. E. 666. The duration of the employment is stated to be ‘as long as he shall faithfully and diligently perform the duties of his employment.’ There is no promise on the commission agent's part to remain with the company for any definite time. This does not invalidate the contract, nor, of itself, make it terminable at the will of the company. Whatever may be the law elsewhere, it is settled by the decisions already cited, Revere v. Boston Copper Co., supra, and Carnig v. Carr, supra, that here a contract in the terms of the one before us is binding upon the company so long as the agent faithfully and diligently performs and is willing and able to perform the prescribed duties at the compensation fixed. Daniell v. Boston & Maine Railroad, 184 Mass. 337, 68 N. E. 337;Elwell v. State Mutual Life Assurance Co., 230 Mass. 248, 119 N. E. 794;Edmund D. Hewins, Inc., v. Marlboro Cotton Mills, 242 Mass. 282, 136 N. E. 159;Proctor v. Union Coal Co., 243 Mass. 428, 137 N. E. 659. We see nothing in Emerson v. Ackerman, 233 Mass. 249, 124 N. E. 17, cited by the defendant, which is to the contrary. Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 19 S. Ct. 335, 43 L. Ed. 591. The judge could not properly, therefore, direct verdicts for the defendant on the ground that no binding contract existed, or that it was terminable at the will of the company.

The defendant...