Perfection Mattress & Spring Co. v. Dupree

• Decision Date: 21 April 1927
• Docket Number: 6 Div. 868
• Citation: 216 Ala. 303,113 So. 74
• Court: Alabama Supreme Court
• Parties: PERFECTION MATTRESS & SPRING CO. v. DUPREE.

113 So. 74

216 Ala. 303

PERFECTION MATTRESS & SPRING CO. v. DUPREE.

6 Div. 868

Supreme Court of Alabama

April 21, 1927

Rehearing Denied June 2, 1927

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by George P. Dupree against the Perfection Mattress & Spring Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Employer sued for discharge of salesman did not waive objection to interrogatory before trial by answering before court ruled.

Count 1, as amended, is as follows:

"Plaintiff claims of the defendant $5,000 as damages for the breach of an agreement entered into between the plaintiff and the defendant on, to wit, the 12th day of January, 1923 which agreement was in substance as follows: The defendant employed the plaintiff as traveling salesman for the remainder of the year 1923. Plaintiff was to furnish his automobile in which to travel the territory assigned him by the defendant and to pay all of his own traveling expenses the defendant was to pay the plaintiff 4 per cent. commission on all business received from customers solicited by the plaintiff in the territory so assigned him. Plaintiff was to be allowed a drawing account of $400 per month against the commissions, which was to be credited to his account monthly and the balance of his account to be paid on July 1, 1923, and January 1, 1924.

"Plaintiff avers that he complied with his part of the agreement and performed his services up to and including the 31st day of October, 1923; that he was ready, willing, and able, and offered to perform his part of said agreement from October 31, 1923, up to and including the 31st day of December, 1924, but that on to wit, the 31st day of October, 1923, the defendant discharged the plaintiff and declined to allow the plaintiff to continue to perform his part of said agreement, although the plaintiff was ready, willing, able, and offered so to do, and the defendant failed or refused to pay the plaintiff any sum for the months of November and December, 1923, and failed or refused to pay the plaintiff any commission on any business received from customers from the territory assigned the plaintiff during said months, all to the plaintiff's damage in the sum aforesaid; wherefore this suit.

"Plaintiff avers that the agreement sued on and referred to in this count was in writing, and that during the months of November and December, 1923, defendant received a large amount of business from customers in the territory assigned to plaintiff in said agreement, on which business defendant has failed to pay plaintiff the agreed commission."

"And plaintiff claims interest on said sum from to wit, January 1, 1924."

Count 2 is based upon a contract in writing, and count 3 is upon an oral agreement.

Defendant's plea 2 is as follows:

"2. For further answer to the complaint defendant says that notwithstanding the facts alleged in the complaint, plaintiff ought not to recover of the defendant for that prior to the time that defendant is alleged to have discharged the plaintiff and while the plaintiff was in the employ of the defendant, the plaintiff attempted to induce one or more coemployees of the defendant to leave the service of the defendant and to enter into a rival business with that of the defendant; that such conduct by the plaintiff was without the defendant's consent and was done under such circumstances as to be prejudicial to the defendant's business, or was likely to become prejudicial, which conduct was unfaithful to the defendant as an employee of the defendant; and within a reasonable time after the discovery of such acts and conduct on the part of the plaintiff, defendant notified plaintiff of such misconduct and discharged him."

Plea 3 alleges, in substance, that plaintiff and other employees of defendant entered into an arrangement among themselves, which they kept secret from defendant, and by which they proposed to enter into a competitive business with defendant, etc.

Demurrer to these pleas was overruled.

Pleas 4 and 5 are as follows:

"4. For further plea to the complaint defendant says that prior to the time plaintiff was discharged by the defendant, plaintiff and other employees of the defendant entered into an arangement among themselves which they kept secret from the defendant to engage in a business on or about January 1, 1924, which was to be competitive with defendant's business, and thereafter and without the defendant's knowledge and in the promotion of the line and scope of arrangement between the plaintiff and such other employees of the defendant, the plaintiff or some other such employee of the defendant who had entered into said arrangement with the plaintiff and in the promotion of the contemplated business to be competitive with defendant's business, notified some of the defendant's customers of such contemplated business, and that after January 1, 1924, such business so to be organized would be able to supply the needs of such customers in defendant's line of business. And defendant says that such conduct was done under such circumstances and so often as to be prejudicial, or likely to become prejudicial, to the defendant, and within a reasonable time after ascertaining such facts, defendant discharged the plaintiff, as alleged in the complaint.

"5. For further plea to the complaint the defendant adopts all the allegations of plea No. 4, and in addition thereto alleges the following facts:

"And defendant alleges that such notice to defendant's customers as set forth in this plea was had and done with the plaintiff's consent."

Plea 6 alleges that prior to his discharge plaintiff and other employees of defendant entered into an arrangement among themselves, which they kept secret from defendant, to engage in business which was to be competitive with defendant's business, and without defendant's knowledge and after plaintiff was discharged plaintiff and such other employees who were also discharged for the same cause forthwith carried out such arrangement and conducted such competitive business during November and December, 1923, for compensation, during which time plaintiff is suing; that such conduct was done under such circumstances as to injure defendant's business or was likely to be prejudicial to defendant, and was unfaithful as an employee of defendant in the promotion of its business; and that within a reasonable time after learning such facts defendant discharged plaintiff.

Plea 7 is the same as plea 6, and adds an averment that after the arrangement alleged had been entered into plaintiff or some employee of defendant who had entered into such arrangement with plaintiff attempted to induce other employees of defendant to join in such competitive business and to leave the employment of defendant.

Plea 8 alleges that prior to the time defendant is alleged to have discharged plaintiff and while plaintiff was in the employ of the defendant, plaintiff attempted to induce one or more coemployees of defendant to leave the service of defendant and to enter a rival business with that of defendant, and that such conduct by plaintiff was without defendant's consent, and defendant notified plaintiff of such misconduct and discharged him.

Plea 9 alleges that prior to the time defendant is alleged to have discharged plaintiff and while plaintiff was in the employ of defendant, plaintiff engaged with other employees of defendant to organize another corporation to engage in business in competition with that of defendant, and subscribed for stock in said corporation, without defendant's consent, and that defendant notified plaintiff of such misconduct and discharged him.

Plaintiff's witness Ridout testified that in January, 1923, he was instructed by the president of defendant company to write a letter embodying the terms of the agreement of employment reached between defendant and plaintiff; that he wrote the letter the following October, which is as follows:

"January 12, 1923.

"Mr. Geo. P. Dupree, P.O. Box. 412, Birmingham, Alabama. Dear Mr. Dupree: We hereby confirm our verbal agreement of several days ago in regard to your contract for the year 1923 as follows:

"You are to furnish your own automobile in which to travel your territory and pay all of your own expenses.

"We will pay you 4 per cent. commission on all business received from such accounts as you solicit in your territory, whether mail, phone or personal orders, which are accepted and shipped by us.

"You will be allowed a drawing account of $400 per month against the above mentioned commissions, which are to be credited to your account monthly. The balance of your account, if any due by us or due us from you, is to be paid July 1, 1923, and January 1, 1924.

"We believe you will find this covers our agreement entirely; if not advise us immediately. Yours very truly, Perfection Mattress & Spring Co., Frank J. Ridout, Secretary.

"FJR/S."

London, Yancey & Brower and Martin, Thompson, Foster & Turner, all of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

ANDERSON C.J.

It is undoubtedly the law that a unilateral contract, that is, one which is binding on one party and not the other, will not authorize an action for the breach of same by the party not bound against the one that is. As we view the complaint in the instant case, and the contract set out, it shows a mutuality as to consideration--that is an employment by the defendant for the year for a compensation and an obligation on the part of the plaintiff to furnish his car and to repay the advances of his traveling expenses out of his commissions. And while there is no express obligation on the part of the plaintiff to...