Myers v. American Well Works, 4646.

• Decision Date: 09 September 1940
• Docket Number: No. 4646.,4646.
• Citation: 114 F.2d 252
• Parties: MYERS v. AMERICAN WELL WORKS.
• Court: U.S. Court of Appeals — Fourth Circuit

114 F.2d 252 (1940)

MYERS v. AMERICAN WELL WORKS.

No. 4646.

Circuit Court of Appeals, Fourth Circuit.

September 9, 1940.

W. H. Jordan, of Lynchburg, Va., for appellant.

F. G. Davidson, Jr., and S. V. Kemp, both of Lynchburg, Va. (T. G. Hobbs and Franklin Daniel, both of Lynchburg, Va., on the brief), for appellee.

Before PARKER and DOBIE, Circuit Judges and CHESNUT, District Judge.

DOBIE, Circuit Judge.

Warren G. Myers (plaintiff-appellant, hereinafter called Myers) brought an action against American Well Works, a corporation (defendant-appellee, hereinafter called American), seeking damages for alleged breach of contract. At the conclusion of Myers' testimony (or, more properly, of all the testimony which he was permitted to introduce) Judge Paul, in the District Court, directed the jury to find a verdict in favor of the defendant, which was accordingly done. Though there are other questions involved in the appeal, we believe we need concern ourselves only with the correctness of the ruling by Judge Paul. Since we think the ruling was entirely proper, we affirm the judgment of the District Court.

Two related contracts are involved in this action. Under the first contract, Myers became the selling agent of American in the territory comprising the States of Virginia, North Carolina and South Carolina. By the second contract, Myers was to procure a selling agent or distributor to cover for American the States of Florida and Georgia. For the Florida and Georgia sales made by his appointee, Myers was to receive an over-ride, or commission, of 5%. Myers alleged a breach of both these contracts by American and, for such alleged breaches, he sought damages in the not inconsiderable sum of $540,000.

For the purpose of this appeal, we must, of course, consider the evidence at its strongest on behalf of Myers. This we do, in addition to giving him the advantage of every fair and reasonable intendment which the evidence can justify. Even from that vantage ground, so favorable to Myers, the evidence, we think, did not make out a prima facie case for the determination of the jury.

At best, under this first contract, Myers was to act as exclusive selling agent for American in Virginia, North Carolina and South Carolina, was to rebuild its prestige in these States, was to discontinue representing other manufacturers, and was to receive a specified commission on such sales of the products of American as he might be able to make in these three States. Though the contract provided that Myers was to pay his own expenses, American made monthly advances (in varying sums) to Myers for his expenses, with the clear understanding that these advances were to be charged against, and were to be deducted from, his commissions.

As Judge Paul said in his clear but concise opinion in the District Court: "There was no contract ever entered into here which made this man (Myers) a permanent sales representative (of American), irrespective of conditions, and the necessary conditions were that he should produce business to a reasonable extent." In addition, this first contract of employment, we think, is subject to the implied condition that the conduct of the employee towards the employer shall at least be respectful and free from insolence, disrespect and insubordination. See 1 Labatt, Master & Servant, 2d Ed., § 299, p. 930; 2 Williston, Contracts, § 1020; 39 Corpus Juris, note at page 85. See, also, Darst v. Mathieson Alkali Works C.C., 81 F. 284; Lubriko Co. v. Wyman 3 Cir., 290 F. 12; Peniston v. John Y. Huber Co., 196 Pa. 580, 46 A. 934.

The second contract certainly did not vest a plenary, unconditional and irrevocable power in Myers to appoint (with the consequent advantage to himself) a sales-agent of American for Florida and Georgia. We see in this contract no more than an undertaking that Myers was to receive the over-ride, or commission, of 5%, on sales of American's products made in Florida and Georgia by the appointee of Myers, if, but only...