Lovell v. Commonwealth Thread Co.
| Decision Date | 01 July 1930 |
| Citation | 172 N.E. 77,272 Mass. 138 |
| Parties | LOVELL v. COMMONWEALTH THREAD CO., Inc., et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Norfolk County; Whiting, Judge.
Action by Prescott W. Lovell against the Commonwealth Thread Company, Inc., and William W. Macdougal. Reported on order sustaining demurrer of the defendant Macdougal.
Order affirmed.C. A. Parker and J. H. White, both of Boston, for plaintiff.
John Wentworth, of Boston, for defendant Macdougal.
This case is reported for determination as to the correctness of the action of the trial judge in sustaining the demurrer of the defendant Macdougal. The declaration alleges a contract between the plaintiff and the two defendants whereby the plaintiff entered the employ of the Thread Company as a salesman, complete performance of all obligations resting on the plaintiff, whereby he became entitled to a salary and also to a commission of two per cent. on sales made by him, payment to him of all salary due him but refusal to pay all the commissions due him, and seeks recovery for the balance due on account of commissions. No other breach of the contract is alleged and no other recovery is sought. Copy of the contract is annexed to the declaration. It is stated in the initial paragraph of the contract that it is made ‘by and between the Commonwealth Thread Co., Inc., William W. Macdougal, parties of the first part, and Prescott W. Lovell, party of the second part.’ Then come these words: ‘Whereas said Thread Company desires to employ and the said Lovell desires to work for said Thread Company as salesman * * * Now Therefore, for and in consideration of One Dollar and other valuable consideration each to the other paid, and of the mutual promises each to the other made, it is hereby mutually agreed as follows:--’ Then follow paragraphs numbered in arabic numerals 1 to 8, inclusive. It is stated in 1 that the Thread Company will employ the plaintiff as salesman in such territory as Macdougal may determine, in 3 that the Thread Company will pay the plaintiff a weekly salary to be determined by Macdougal, in 4 that the Thread Company will pay the plaintiff a commission of two per cent. on his net sales, in 5 that the plaintiff may employ assistants or subsalesmen in substance in accordance with conditions determined by Macdougal, and in 6 that Macdougal shall determine the selling prices. In 7 it is provided that, in case the contract does not prove ‘satisfactory to the parties hereto * * * then said party shall give the other party a written notice’ with certain consequences and alternatives and the further stipulation that if ‘the contract is terminated, said Thread Company or Macdougal shall have no right to take over any selling organization which said Lovell may then have.’ The remaining two paragraphs relate to the obligation of the plaintiff not to engage in any conflicting business and to the cancellation of an earlier contract. Macdougal is not mentioned in either of those paragraphs. The testimonium clause recites that ‘the parties hereunto set their hands and seals to this and a duplicate hereof.’ The contract is signed by the three parties to this action and is under seal.
The cause assigned in the demurrer of Macdougal is that the declaration sets out no cause of action against him. This presents the only question to be decided. Stated more analytically, the question is whether the contract is joint...
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