Resener v. Watts, Ritter & Co.

• Decision Date: 09 December 1913
• Citation: 80 S.E. 839,73 W.Va. 342
• Parties: RESENER v. WATTS, RITTER & CO.
• Court: West Virginia Supreme Court

80 S.E. 839

73 W.Va. 342

RESENER v. WATTS, RITTER & CO.

Supreme Court of Appeals of West Virginia.

December 9, 1913

Submitted December 2, 1913.

Rehearing Denied Feb. 12, 1914.

Syllabus by the Court.

An employment upon a monthly or annual salary, if no definite period is otherwise stated or proved for its continuance is presumed to be a hiring at will, which either party may at any time determine at his pleasure without liability for breach of contract.

The burden of proving that such hiring was obligatory for a year rests on the party who seeks to establish that the contract covered that period.

Unless the understanding was mutual that the service was to extend for a certain fixed and definite period, it is an indefinite hiring, and is determinable at the will of either party.

Error to Circuit Court, Cabell County.

Action by H. A. Resener against Watts, Ritter & Co. Judgment for plaintiff and from an order granting a new trial, plaintiff brings error. Reversed, motion for new trial overruled, and judgment entered on the verdict.

Geo. S Wallace, of Huntington, for plaintiff in error.

Holt Duncan & Holt, of Huntington, for defendant in error.

LYNCH J.

Upon the general issue in assumpsit, the jury found in favor of plaintiff $576.83, claimed by him as a balance due under a contract of employment. The court, on motion of defendant set aside the verdict as "contrary to the law and the evidence," and awarded a new trial. By his writ of error, plaintiff asks reversal of this ruling and a judgment here upon the verdict. His contention is that the contract proved is a general or indefinite hiring, terminable at will; that, upon voluntary withdrawal therefrom, he is entitled to the compensation then earned, represented by the sum sued for. Defendant, on the other hand, claims the employment was for the definite period of one year, and that, having quit before full performance, plaintiff cannot recover on the contract or on a quantum meruit. The terms of the contract, except its duration, are clearly proven. In the latter part of 1907, plaintiff entered the employment of defendant, a wholesale dealer in dry goods and notions, as traveling salesman, upon an agreement for a monthly salary and expenses, and the further compensation of 5 per cent. commissions, in excess of salary and expenses, on goods sold by him, the excess to be ascertained and paid on settlements made at the end of each year. No definite duration was fixed for the employment. Plaintiff worked until December, 1908, when he was paid the commissions due for the year, and a new contract made with the same terms, except that the monthly salary was increased and new territory added. Watts, president of the company, says the contract was "for one year," but he does not further indicate there was a mutual agreement to that effect. Plaintiff continued to work under this contract until the close of 1909, except that his commissions were reduced by Watts in February from 5 to 3 per cent. Upon the annual settlement at the close of 1909, no commissions were due plaintiff, his commissions being $10 less than the aggregate of his salary and expenses for that year. Both he and Watts say no new arrangement was made for 1910; that the agreement for 1909 continued without change. During the employment defendant rendered monthly statements to plaintiff, showing both the sums paid him as salary and expenses and the amount of goods sold by him during the preceding month. Plaintiff continued in the employment of the company until May, 1910, when, having become interested as stockholder in another similar company, he notified Watts of his intention to discontinue his previous engagements, and, without objection by defendant, quit its service. He had then earned in that year $576.83 in commissions in excess of salary and expenses. To recover this balance, he instituted this action, having already received all salary and expenses then due. These are the facts from which we must determine whether the employment was for a year or at will. This is the crucial test of plaintiff's right to recovery. No proof defines the duration of the employment. It is general, not definite. Being of such indefinite character, it is necessary to ascertain by construction the extent of the engagement.

The authorities, while not wholly in accord, generally state the doctrine applicable to such cases to be that an employment upon a weekly, monthly, or annual salary. If no definite period is otherwise stated or proved for its continuance, is presumed to be a hiring at will. Many authorities so hold. Edwards v. Seaboard Railroad Co., 121 N.C. 490, 28 S.E. 137; Currier v. Lumber Co., 150 N.C. 694, 64 S.E. 763, 134 Am.St.Rep. 955; Finger v. Brewing Co., 13 Mo.App. 310; Evans v. Railway Co., 24 Mo.App 114; Hotchkiss v. Godkin, 63 A.D. 468, 71 N.Y.S. 629; Cycle Co. v. Teeter, 18 Ind.App. 476, 48 N.E. 595; Bentley v. Smith, 3 Ga.App. 242, 59 S.E. 720; Prentiss v. Ledyard, 28 Wis. 131; Haney v. Caldwell, 35 Ark. 156; Booth v. India Rubber Co., 19 R.I. 696, 36 A. 714; Orr v. Ward, 73 Ill. 318. 1 Labatt on Mas. & Serv. § 159 says: "The doctrine applied by the great majority of the courts, which have so far (1913) expressed an opinion on the subject, consists essentially in a complete repudiation of the presumption that a general or indefinite hiring is a hiring for a year, and the substitution of another presumption, viz., that such a hiring is a...