Oehme v. Whittemore-Wright Co.

• Decision Date: 01 July 1932
• Citation: 279 Mass. 558,181 N.E. 733
• Parties: OEHME v. WHITTEMORE-WRIGHT CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 558

181 N.E. 733

OEHME

v.WHITTEMORE-WRIGHT CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1932.

Exceptions from Superior Court, Suffolk County; James C. Donnelly, Judge.

Action by F. W. Oehme against the Whittemore-Wright Company and trustees. Verdict in favor of the plaintiff, and the defendants bring exceptions.

Exceptions overruled.

B. Morton, of Boston, for plaintiff.

E. H. Abbot, Jr., and J. W. Allen, both of Boston, for defendants.

PER CURIAM.

The subjoined opinion was prepared by Mr. Justice SANDERSON, and was adopted as the opinion of the court after his death by the justices who sat with him in the consideration of the case.

This is an action of contract in which the declaration alleged that in consideration of the plaintiff's entering into the defendant's employment and manufacturing for the defendant certain oils according to his formulas, the defendantagreed, about 1924, to pay the plaintiff a yearly salary together with a commission on all of a certain oil manufactured by the defendant, and in addition twenty-five per cent. of the net profits of the oil department, with a stipulation that in the event of the plaintiff's death his widow was to receive the proceeds of the arrangement; that in lieu of said original agreement, in the year 1927 the defendant agreed to pay the plaintiff a flat sum at the rate of $5,000 per annum; that since about the first of August, 1927, the defendant has refused and declined to make such payment although the plaintiff has at all times been ready and willing to carry out his part of the agreement. The answer was a general denial, plea of payment, that the employment of the plaintiff was terminated for good and sufficient reasons without fault on the part of the defendant, and, further answering, that the employment was terminated by mutual consent.

After the plaintiff rested and shortly before the close of the evidence, the plaintiff, subject to the defendant's exception, was allowed to amend his declaration by adding a count stating, in substance, that in April, 1924, the board of directors, who were substantially all the stockholders of the defendant, entered into an agreement with the plaintiff, a copy of which is annexed to the declaration, and thereafter, in October, 1924, in consideration of the plaintiff's suspending the operation of that agreement, the directors caused the defendant to issue ten shares of the stock of the company in lieu of additional salary for the year 1924; that later, in consideration of the plaintiff's postponing the operation of the agreement and continuing in the employ of the defendant, the plaintiff's salary was increased by vote of the directors of the corporation in January, 1925, January, 1926, and January, 1927, at which date the salary was fixed at $5,000 per annum, to be paid in the event of the death of the plaintiff to his widow; that the salary was paid in monthly installments, and since August 1, 1927, the defendant has refused and declined to make payments in accordance with the agreement, although the plaintiff has at all times been ready and willing to perform his part of the agreement. The proposed agreement attached to the amended count in the declaration is as follows: ‘We will pay you in July next half the net profits on Olive Oil for the first six months of this year after settling up our books at that time, and again in January next after our books are balanced and profits determined. If the Oil business has shown a reasonable profit after the books are balanced in January, we will form a separate Oil Company, in which you are to be given one-quarter interest gratis, and also be President and a Director. When this is done, no further profits are to be paid you from the Olive Oil except those which would be included in your 25% of the profits of the Oil Company. We will also pay an increase of salary annually to be determined by the profits of the Oil business for the preceding year.’ This was signed by the three men who are respectively the president, the treasurer, and the factory superintendent, and who also at the time were the board of directors. The question whether the declaration should have been amended by adding this second count was in the discretion of the trial judge and on the record no abuse of discretion is shown.

The defendant contends that a verdict should have been directed for the reasons, among others, that the plaintiff was guilty of willful default and general insubordination and because he voluntarily left the defendant's employment.

At a directors' meeting held in August, 1927, and attended by the plaintiff and other directors, on motion of one Wright, the superintendent of the factory, and seconded by one Whittemore, the president, ‘it was voted to ask for the resignation of Mr. Oehme, to take effect at once.’ After the vote was passed the plaintiff left the meeting and has done no work for the defendant since. The contention of the plaintiff is that he was then discharged; the defendant contends that the vote was merely an invitation to resign-an invitation accepted by the plaintiff and approved by the defendant. We are of opinion that, when all the circumstances are considered, the question whether the defendant intended by the vote to discharge the plaintiff, and whether the plaintiff was warranted in so understandingthe vote, were for the jury. We think the plaintiff's rights were protected by the charge in which the jury were told, in substance, that if the plaintiff resigned he had no right of action against the defendant. The jury must have found, as they had a right to do, that the plaintiff was discharged. See Shugg v. American Shoe & Leather Association, 192 Mass. 167, 77 N. E. 1029;Jones v. Graham & Morton Transportation Co., 51 Mich. 539, 16 N. W. 893.

The next question is whether the plaintiff had so conducted himself that the defendant had a right to discharge him. The principal contention of the defendant on this issue seems to be that the plaintiff had acted in such an insubordinate manner that he had forfeited his right to continue in the employment. The jury were instructed, in substance, that if the plaintiff was not loyal and faithful to the interests of the company, using his best ability to promote those interests, then a discharge would be justified and the plaintiff would be entitled to no compensation for his services. The trial judge in his charge defined insubordination and left it to the jury to decide whether there had been such insubordination on the part of the plaintiff as to justify the defendant in terminating the employment. Inasmuch as the jury have found that the termination of the employment was not justified, the question for our consideration is whether, on the admitted facts, the defendant was warranted as matter of law in discharging the plaintiff.

The plaintiff testified that...