Matheney v. McClain, 42926
| Decision Date | 09 March 1964 |
| Docket Number | No. 42926,42926 |
| Citation | 161 So.2d 516,248 Miss. 842 |
| Parties | Cecil B. MATHENEY and Franklin B. Arnold v. John McCLAIN and C. W. Hicks. |
| Court | Mississippi Supreme Court |
Wayne L. Nix, Jackson, R. L. Calhoun, Hattiesburg, for appellants.
Simrall, Aultman & Pope, Hattiesburg, for appellees.
The appellants, Cecil B. Matheney and Franklin B. Arnold, filed a bill of complaint in the Chancery Court of Forrest County, Mississippi, seeking to enjoin the appellees, John McClain and C. W. Hicks, from conducting an appraisal business, and asking a judgment for damages. The relief sought is based upon the alleged violation of two contracts, one of which was signed by each of the appellees and appellants. They are identical except for names and dates. The contract signed by John M. McClain is dated June 1, 1961, and the one signed by C. W. Hicks is dated June 4, 1962.
Appellees answer the bill and admitted the validity of the contract, and also admitted that they were operating an appraisal business, but denied they had violated the agreement contained in the contract, because, it is asserted, the appellants themselves violated the contract by changing the pay plan set out in the contract, without the written agreement of appellees. Further, it is alleged the appellants refused to do equity and could not therefore maintain an action for injunctive relief. Appellants responded to the affirmative allegation in the answer, saying that they did not breach the contract, and pleading in the alternative, that appellees had waived any breach of which appellants might have been guilty.
The chancellor heard the testimony and at the conclusion of the evidence entered a decree finding as a fact that the appellants breached the contract. He dismissed the bill and released appellees. We are of the opinion that the chancellor was correct in dismissing the original bill under the facts.
The contract signed by the parties contains the following pertinent clauses:
'The party of the second part agrees to devote his full time and talents to the operations of said business in the area as agreed on by both parties and will furnish his own transportation and transportation expenses, and all his own personal expenses except where he is called into the central office for a meeting or such other special occasion as shall be agreed on.
'Due to a highly skilled nature of this work, the party of the second part is of necessity bound to produce his work without close supervision, and will be responsible for his work to the point that all work done will have to come up to the satisfactory level, meeting approval of the party of the first part and the assigning agent or agency. * * *
'The party of the second part further agrees that should his employment with the party of the first part be terminated for any reason, that he will not take part in the operation of any other business of the same nature and character, as principal, agent, manager, or otherwise, within a radius of 200 miles of Jackson, Mississippi, or 100 miles of any branch office of party of the first part for a period of at least two years from the date of the termination of his employment, and he further agrees that should he violate this agreement that he shall be held liable to the party of the first part in the sum of One Hundred Twenty-Five and No/100 Dollars ($125.00) per week as long as such violation continues.
'The contract between the party of the first part and the party of the second part may be terminated by either party at any time by giving the other party two weeks notice in writing.'
It is said that there is attached to the contract the document provided for in Paragraph 5, likewise signed by all of the parties. This document is entitled: 'Compensation Agreement.' It provides: (1) A salary of $125 per week; (2) a quota of $800 gross in fees, and mileage charges, to be submitted before receiving an additional compensation; and (3) that appellee would receive fifty percent of all additional fees in excess of $800, quota, such amount to be paid as soon after the first of the following month as was possible.
The testimony shows that in July 1962 appellants held a meeting with their employees, including the appellees, at which time appellants proposed several plans, whereby the employees' pay would be reduced. Appellants claimed there was an understanding that the pay of the employees would be reduced, at this time. The chancellor held that there was no agreement to change the contract, and we are of the opinion he was correct in so doing. There was certainly no written change in the contract. Later, on September 4, 1962, appellant Matheney sent out a memorandum reducing fees of the appellees to one-third of the amount between $800 and $1,100. This reduction in salary was made retroactive to August 1, 1962. The appellants did not thereafter offer to comply with the pay scale, outlined in the written contract. The appellees objected to the change of the contract so as to reduce their pay set out in the memorandum. One of the appellees came to Jackson and advised the appellant that he could not work at a reduced pay wage, and the other returned his bonus check, but both accepted the reduced pay checks for the months of September and October. They claimed, however, that such checks were accepted after having fully advised appellants that they could not live on such reduced pay.
Appellees went to the office of appellants and advised their secretary that they were quitting. The following Saturday, appellants went to Hattiesburg and had a conversation with appellees, where, it is said by appellants, that there was a mutual understanding that John McClain would work on for a reasonable time until they could get someone to take his place, and that he did work until November 16, 1962, as a result of this understanding. Appellants based their claim for injunctive relief on the fact that appellees gave no written notice to them.
Inasmuch as the chancellor decided from the facts (which we believe to be overwhelming) that appellants breached the contract by reducing the pay scale agreed to in the contract--the issue finally becomes a question as to whether or not appellees waived the breaching of the contract--so that they were bound to give notice of their resignation in writing, and were bound by the contract not to engage in the appraisal business within two hundred miles of Jackson, Mississippi.
We are not troubled in the instant case with the problem presented in Bagwell v. H. B. Wellborn & Co., Inc., Miss., 156 So.2d 739, because, if ...
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