McLaughlin v. Union-Leader Corp.

• Decision Date: 31 August 1955
• Docket Number: UNION-LEADER
• Parties: Walter D. McLAUGHLIN v.CORPORATION.
• Court: New Hampshire Supreme Court

Page 489

116 A.2d 489

99 N.H. 492

Walter D. McLAUGHLIN v. UNION-LEADER CORPORATION.

Supreme Court of New Hampshire.

Argued May 4, 1955.

Decided July 8, 1955.

Rehearing Denied Aug. 31, 1955.

McLane, Carleton, Graf, Greene & Brown, Manchester, Stanley M. Brown, Manchester, for plaintiff.

Upton, Sanders & Upton, Concord, A. Luke Crispe, Brattleboro, Robert W. Upton, John H. Sanders, Concord, for defendant.

KENISON, Chief Justice.

In considering the motions for a nonsuit and a directed verdict we proceed on the familiar principle of law that the prevailing party below is entitled to have the evidence considered by the appellate court in its most favorable aspect. Maloney v. Boston Development Corp., 98 N.H. 78, 95 A.2d 129; Isabelle v. Carnes, 99 N.H. 184, 185, 107 A.2d 227. On one view of the evidence the plaintiff was uncooperative, disobedient and inefficient, while on another view he was consistently successful, efficient and performed his contractual duties without complaint. The jury having adopted the latter view, which was warranted by the evidence, we must accept it for the purposes of review.

It is the plaintiff's contention that the defendant, either expressly or impliedly, undertook to provide the plaintiff an opportunity to work consistent with his position as Advertising Manager. Reliance is placed on Restatement, Agency, s. 433, comment c.: 'Fixed Salary. If the agent's compensation is not dependent upon the amount of work done, as where he is to receive a fixed salary, a promise by the principal to furnish him with work is inferred from a promise to employ only if it is found that the anticipated benefit to the agent from doing the work is a material part of the advantage to be received by him from the employment. This anticipated benefit may be the acquisition of skill or reputation by the employee or the acquisition of subsidiary pecuniary advantages, as in the case of the employment of public performers whose reputation will be enhanced by their appearance or diminished by their failure to appear, beginners in a trade or profession, and those whose compensation is likely to be enhanced by receiving gratuities from outside sources. Other employments may come within the same principle.'

On the other hand it is the defendant's contention that it was under no obligation to provide the agent with an opportunity to work. In support of this are English cases involving salesmen, Turner v. Sawdon & Co., [1901] 2 K.B. 653; Lagerwall v. Wilkinson, 80 Law Times Reports 55 (1899); an unofficial opinion from Rhode Island, Lathrop v. Visitor Printing Co., R.I., 30 A. 964; and see Wallace v. Kranz, 226 App.Div. 125, 234 N.Y.S. 439.

While of course the plaintiff's position was not similar to that of a public performer which is referred to as an illustration in the Restatement of Agency, his status was more than that of a salesman or servant. 'Likewise, in commercial employment an employee may have been promised a place of dignity and privilege, so that it is a breach of contract, and an essential one, to reduce him to an inferior status. One who has been hired to be superintendent or general sales manager would generally be justified in quitting if he is ordered to act as floorwalker or sales clerk, even though his salary is not reduced. Such an order would also be held to be a wrongful discharge by the employer.' 3 Corbin on Contracts, s. 683.

We do not think it would be a reasonable construction of the contract to say that the plaintiff was to have the title of Advertising Manager but was to be placed principally in an inactive status. It clearly could be found from the evidence that this was not contemplated by the parties when the contract was entered into and at the time when the plaintiff's services were considered essential to the defendant's advertising activities. This does not nullify the defendant's right under the contract to assign duties to the plaintiff or to change them. However the defendant's right to assign the plaintiff's duties and responsibilities does not extend to the point where the assignment would constitute in effect a virtual replacement and demotion. Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139. The jury could find that plaintiff's leave of absence when combined with the appointment of a new local advertising manager constituted a breach of the contract by the defendant. As was said in Mair v. Southern Minnesota Broadcasting Co., 226 Minn. 137, 140, 32 N.W.2d 177, 179, 4 A.L.R.2d 273: 'To the employes, to the public, and to defendant itself, he would be manager in name only.' Such a result was inconsistent with the plaintiff's contract of employment and his position as advertising manager. Annotation 4 A.L.R.2d 276; 4 Williston, Contracts (Rev.ed.), s. 1015. The motions for a nonsuit and a directed verdict were properly denied. Collier v. Sunday Referee Pub. Co., [1940] 4 All.Eng. 234. See also, In re Rubel Bronze & Metal Co. Ltd. and Vos, L.R. (1918] 1 K.B. 315 distinguishing and doubting Turner v. Sawdon & Co. [1901] 2 K.B. 653.

A question by the defendant to the witness Loeb as to why he did not take more drastic steps than putting the plaintiff on an indefinite leave of absence with pay was excluded by the Trial Court on the ground it had already been explained in detail. As we read the record, this was correct since the witness' previous testimony was to the effect that the plaintiff was not then giving satisfactory performance under the contract, and, as the Trial Court observed, 'was all tired out.' This exclusion was not erroneous. Merchants Nat. Bank v. Sullivan, 96 N.H. 430, 435, 78 A.2d 508. Loeb testified that he 'gave * * * very careful consideration' to McQuaid's suggestion that the plaintiff be placed on a leave of absence. When the same evidence was subsequently offered through the witness McQuaid, it was only cumulative and properly excluded. Alukonis v. Kashulines, 96 N.H. 107, 70 A.2d 202, 17 A.L.R.2d 1125. Evidence as to whether a 'leave of absence with pay' was 'an arrangement used in newspaper circles' was properly excluded. There being no evidence that the parties contracted with reference to any usage, or that the suggested usage was customary or general, or known to the plaintiff, the evidence related to a collateral issue, and it was for the Trial Court to decide 'when and how far it [was] profitable to investigate such issues.' Fellows v. Champion International Co., 76 N.H. 457, 458, 83 A. 1091, 1092. See Buxton v. Langan, 90 N.H. 13, 16, 3 A.2d 647.

The defendant sought unsuccessfully to withdraw from the jury on the issue of plaintiff's damages the benefits allegedly due the plaintiff from the defendant's profit-sharing plan and group insurance plan. The jury were instructed that if the plaintiff recovered, he was entitled to any amounts he would have received in addition to his contract pay had both parties completely performed the contract and that this included the profit-sharing payments he would have received and the amounts which would have been expended in insurance premiums for his benefit. Assuming for the purposes of this case, as the defendant contends, that neither the profit-sharing plan nor the group insurance plan created any contractual rights in the plaintiff, it does not follow that they are incompetent evidence on the issue of damages. The plaintiff had received benefits under both plans and probably would have continued to receive them in the future if the contract had been performed. The loss of these benefits was an element of damages to which the plaintiff was entitled in order to place him in as good a position as he would have been in if the contract had been performed. 3 Williston, Contracts (Rev.ed.) s. 1338; Restatement, Contracts, s. 330. The loss of these benefits was a direct consequence of the breach of the employment contract which the defendant had reason to foresee as a probable result of the breach for which compensatory damages may be awarded. Davis v. New England Cotton Yarn Co., 77 N.H. 403, 92 A. 732; Johnson v. Waisman Bros., 93 N.H. 133, 36 A.2d 634.

Plaintiff argued to the jury that Loeb brought Montague to Manchester to relieve the payroll of his Vermont newspapers. This argument was within the bounds of legitimate advocacy. Since the Trial Court has not found the argument unfair and prejudicial, the exception is overruled. Richards v. Miller North Broad Transit Co., 96 N.H. 272, 278, 74 A.2d 552. The argument that classified and national advertising was removed from the plaintiff's supervision by Montague after the contract was signed was an inference that could be made from the evidence even though it is more likely that it was before the contract was signed on November 1, 1947. Montague's arrival in Manchester was about October 1, 1947, and he stated that this took place 'within two or three months' thereafter. This could have been after the contract was signed and therefore the argument was not without foundation. Sweeney v. Willette, 98 N.H. 512, 104 A.2d 398. Plaintiff argued that there was only 'silence' from the lawyer retained by the defendant in 1948 when he was consulted about the termination of the employment contract, that the lawyer could have testified that he advised the defendant to fire the plaintiff but that nothing was done. While the Trial Court would have been justified in disallowing such argument, Freeman v. Fogg, 82 Me. 408, 19 A. 907, and while there is some relcutance to permit an adverse inference to be...