Lyons v. Pease Piano Co.

• Decision Date: 03 March 1919
• Docket Number: No. 88.,88.
• Citation: 107 A. 66
• Parties: LYONS v. PEASE PIANO CO.
• Court: New Jersey Supreme Court

107 A. 66

LYONS

v. PEASE PIANO CO.

No. 88.

Court of Errors and Appeals of New Jersey.

March 3, 1919.

Syllabus by the Court.

Additional Syllabus by Editorial Staft.

Error to Supreme Court.

Suit by Simpson B. Lyons against the Pease Piano Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Carrick & Wortendyke, of Jersey City, for plaintiff in error.

Scott German, of Newark, for defendant in error.

MINTURN, J. The suit was for damages for a breach of a contract of hiring, which was evidenced by certain letters which passed between the parties (who were in the business of selling pianos) containing the terms of the employment, but leaving the duration of the term of employment unspecified, but subject to legal inference by construction of the writings in the light of the nature of the employment, and the general character and extent of the work in view. The plaintiff on March 1, 1917, wrote:

"I will accept your proposition on salary for the writer, i. e., $50 per week and 1% commission, on net sales over $60,000 made through our Newark store, this to include any and all sales, with the understanding my salary starts with the new year, January 1, 1917; all our reports run from January 1st to December 31st."

The defendant contended that this acceptance, which was acted upon by both parties until May 19, 1917, when plaintiff was discharged, was in legal effect a hiring at will or by the week. The trial court instructed the jury that its legal effect was to effectuate a yearly hiring, and this issue presents the gravamen of the controversy.

The construction of the contract was properly conceded to the court by both parties, as a legal proposition. Where the term of employment involved is left by the writing in the sphere of doubt, and a practical method of determining it is the circumstance of weekly or monthly payments made during its continuance, as evidencing the mutual intent by the construction of the parties themselves, the settled rule is to resort to that circumstance as an aid in the proper construction of the contract. Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214; Passino v. Brady Co., 83 N. J. Law, 421, 84 Atl. 615; Jones v. Manhattan Co., 103 Atl. 984.

In the latter ease the payments were made semiannually, but it was held that that fact was not inconsistent with a yearly hiring "when from a consideration of all of its terms such appears to have been the intention of the parties."

As a result of the...