Matthews v. Jenkins

• Decision Date: 16 April 1885
• Citation: 80 Va. 463
• Parties: MATTHEWS v. JENKINS.
• Court: Virginia Supreme Court

80 Va. 463

MATTHEWS v. JENKINS.

Supreme Court of Appeals of Virginia.

April 16, 1885

Appeal from decree of circuit court of Fauquier county, pronounced 14th April, 1883, in the chancery suit of S. T. Jenkins plaintiff, against T. W. Matthews, defendant.

The defendant was a non-resident of this state, but owned real estate in said county, and the plaintiff sued out an attachment in equity, and had it levied on the said real estate; and the court below decreed that the defendant pay to the plaintiff the sum of $556.50, with interest thereon from the 2nd June, 1882, until paid, and his costs, and in default of such payment that the said real estate be sold. From this decree Matthews obtained an appeal and supersedeas from one of the judges of this court.

Opinion states the case.

A D. Payne, for the appellant.

Hunton & Son, for the appellee.

OPINION

HINTON J.

This was an attachment in equity, brought to recover of the appellant, who is a non-resident, a balance of salary claimed to be due the appellee for services under the provisions of the agreement following:

An agreement entered into between T. W. Matthews, secretary of the Mutual Endowment Association of Baltimore, Md., and S. T. Jenkins, of Atlanta, Ga. The said Matthews agrees to pay the said Jenkins the sum of two hundred dollars ($200) per month for one year, as a guaranteed salary as a general manager and agent of the southern department of the association. The said Matthews agrees to pay the said Jenkins all the commissions of the membership fee over and above twenty per cent. when the said sum exceeds the sum of twenty-four hundred dollars ($2,400) for the year. The said Jenkins to give his undivided time and attention to the interest of the association. This agreement shall take effect from the 2nd day of January, 1882, and to continue one year. Office rents to be paid by T. W. Matthews.

T. W. MATTHEWS,

S. T. JENKINS.

Atlanta, December 21, 1881.

The evidence establishes that the plaintiff faithfully discharged all the duties pertaining to his employment from the 2nd of January, 1882, until the 2nd June in the same year, when, in consequence of the receipt of a letter from the defendant indicating a desire to modify the contract, he tendered his resignation and discontinued work.

The court decreed in favor of the plaintiff, for $556.50, which appears to be the balance to which he is entitled upon a proper statement of the accounts; allowing him the sum of $1,000 as salary for five months, and $40.50 for office rent, fixtures and commissions, and deducting therefrom the sum of $484 for advances made in cash and other ways.

The defendant filed a demurrer and answer to the bill. The demurrer assigned no causes of demurrer, but was in general language, and, in accordance with the now common practice with us, was set out in the beginning of the answer. Dunn v. Dunn, 26 Gratt. 296. The record does not disclose what disposition was made of it, but we think it must be considered as overruled, for we cannot presume that the court would proceed to adjudicate the principles of the cause in favor of the plaintiff without having first determined upon the sufficiency of his bill. This was the view taken of this subject by the supreme court of West Virginia, in a late case, and it seems to us to be the only one which can be taken consistently with the presumption which usually obtains in regard to all judicial proceedings, in the absence of evidence to the contrary, that there has been a regular and orderly course of procedure. Hinchman v. Ballard, 7 W.Va. 171.

It is now assigned as error, however, that the demurrer was not sustained. It is argued in support of this position, that the agreement (which is made part of the bill) creates, in legal effect, a contract between the association and the plaintiff but none between the plaintiff and the defendant; and that the suit should therefore have been brought against the association. To this suggestion we cannot give our assent. The only question to be determined is the purpose and intent with which the plaintiff executed this agreement. Did he intend to bind himself or the association? And this question, we think, may be easily answered upon a simple examination of the terms which the plaintiff has seen fit to employ. Here all the words of promise are the words of the defendant. It is he who agrees to pay the guaranteed salary of two hundred dollars per month, the office rent and the commissions. And he, it is, who signs the agreement without the addition of any words giving notice to the plaintiff that he was merely applying " the executing hand as the instrument of another." In this case we have no parol evidence to aid us in the construction of the contract. It is, however, on its face the personal contract of the defendant Matthews, and unless we are prepared to reverse the rule that ...