M & B Const. Co., Inc. v. Mitchell, 7977
| Decision Date | 23 April 1973 |
| Docket Number | No. 7977,7977 |
| Citation | 213 Va. 755,195 S.E.2d 873 |
| Court | Virginia Supreme Court |
| Parties | M & B CONSTRUCTION COMPANY, INC. v. Robert L. MITCHELL. |
Harry P. Hart, Alexandria (T. Brooke Howard, Murphy, Hart & O'Neill, Howard, Stevens, Lynch, Cake & Howard, Alexandria, on brief), for plaintiff in error.
Roy A. Swayze, Fairfax, for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
I'ANSON, Justice.
Plaintiff, Robert L. Mitchell, obtained a judgment entered on a jury verdict in the sum of $26,800 against the defendant, M & B Construction Company, Inc., for breach of contract. Defendant is here on a writ of error to the judgment.
Defendant contends that the trial court erred in refusing to grant certain instructions, in allowing improper evidence to prove plaintiff's damages, and in not finding as a matter of law an accord and satisfaction.
The evidence shows that M & B Construction Company was engaged in the construction business as a subcontractor and its officers were desirous of expanding its operations into the general contracting field. On November 1, 1968, the company employed the plaintiff, who was experienced in this activity, as general manager for the company's general contracting business. The parol contract of employment provided that plaintiff would receive an annual salary of $16,000, and the company would pay one-half of his premiums for medical and hospitalization insurance, provide him with an automobile for transportation, and allow him two weeks' annual vacation with pay. In addition, plaintiff would receive 8 1/3 percent of the company's net profits before taxes for the first year of his employment, 16 2/3 percent for the second year, and 25 percent for the third and all ensuing years.
In November 1969, shortly after the company had given plaintiff his second salary increase, Kenneth Minchew, president of the company, advised plaintiff that his share in the profits of the company would be 5 percent on all contracts originating thereafter, in lieu of the previous agreement entered into with A. R. Minchew, Kenneth's father and secretary-treasurer of the company. Plaintiff neither expressly rejected nor accepted the offer, but he continued to work for the company.
In December 1969 plaintiff took his two-week vacation, after having been told by Kenneth Minchew that if he took more than one week he would not have a job when he returned. When plaintiff returned, Kenneth advised him that his employment would be terminated on January 23, 1970.
Plaintiff was tendered the company's check on January 23 in the amount of $1,000 and was told by Kenneth, Plaintiff stated, 'I took it, but I told him I was expecting more.' Plaintiff also said that there was no understanding or agreement between him and Kenneth that the $1,000 payment was satisfactory. The check was cashed on January 31 and plaintiff subsequently wrote to the company demanding payment of the additional amount he claimed was due him.
Plaintiff's evidence showed that 8 1/3 percent of the profits of the company for the first year of his employment, and 5 percent of the profits from November 1, 1969, to January 23, 1970, amounted to $26,909.35; and that one-half of the reimbursement for medical and hospitalization insurance, mileage for use of his personal automobile, and unpaid salary was $3,109.09.
Instruction A, refused by the court, would have told the jury that if they found plaintiff had disobeyed a reasonable order of the defendant, their verdict should be for the defendant.
The instruction was properly refused. Whether or not plaintiff's employment as general manager was justly terminated was not an issue in the case. He made no claim for damages for wrongful termination of the agreement before a 'reasonable time' of his employment had elapsed. Here plaintiff's claim was based on his percentage of the profits of the company, and there was no contractual understanding between the parties that there would be a forfeiture of plaintiff's share of the profits upon termination of his employment. The discharge of the plaintiff did not operate as a legal forfeiture of the profits he was entitled to receive under his contractual right.
Instruction E set out an acceptable definition of accord and satisfaction, but it further told the jury that if the defendant, in November 1969, refused to grant plaintiff '8 1/2 percent' 1 of the net profits and defendant did agree to give plaintiff 5 percent of the net profits on contracts originating after November 1, 1969, then they should find that the November 1969 agreement was a valid accord and satisfaction which extinguished any previous agreement, and that their verdict should be for the defendant.
This instruction was also properly refused. The recitation of the facts in the finding instruction does not mention an essential element of accord and satisfaction, viz., that one party offered and the other accepted a new agreement in settlement of a disputed claim growing out of a former contract. The instruction fails to say 'if the jury believes that plaintiff accepted...
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