Reuter v. Ballard

• Decision Date: 06 June 1929
• Citation: 267 Mass. 557,166 N.E. 822
• Parties: REUTER v. BALLARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 557

166 N.E. 822

REUTER

v.BALLARD.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1929.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by Charles F. Reuter against Arthur H. Ballard. Defendant's motions for directed verdict were denied, verdict was returned for plaintiff, and defendant brings exceptions. Exceptions overruled.A. J. Berkwitz, of Boston, for plaintiff.

J. W. Worthen, E. B. Cook, and H. C. Splane, all of Boston, for defendant.

PIERCE, J.

In this action the plaintiff seeks to recover damages from the defendant for the breach of an alleged contract.

The original declaration in substance alleged as follows: The defendant, in March, 1922, engaged the plaintiff to devote himself to the task of obtaining a suitable piece or parcel of land on the outskirts of New York City for the purpose of building and maintaining thereon a huge tank for the storing of fuel oil. In connection with the carrying out of this project the plaintiff was also to obtain from the proper authorities of the city of New York a permit authorizing the use of the premises for the purpose of storing fuel oil thereon. In consideration of the services to be rendered by the plaintiff, the defendant agreed that, as soon as a suitable tract of land and a permit authorizing the storage of fuel oil thereon had been obtained, he would invest in the enterprise and engage in the business of selling fuel oil in New York City; that he would form a corporation, give the plaintiff twenty-five per cent. of its common stock, which, he promised, would entitle the plaintiff to one fourth part of the profits. He also agreed to make the plaintiff a director of the corporation; that he would be otherwise permanently connected with the enterprise ‘at a salary of $15,000 per year and that his employment * * * [would] continue for a period of not less than five years.’ The declaration further alleged in substance that the plaintiff had carried out his part of the agreement and that the defendant had refused to perform his part. The answer and amended answer were a general denial, the statute of frauds, and payment.

The plaintiff was allowed to amend his declaration by the addition of two counts. Count two is a more specific statement of the alleged contract set out in count one. In substance it alleges an employment of the plaintiff for the term of one year at a salary of $15,000, the year ‘to start as of May 15, 1922.’ The amended declaration alleges in substance full performance of the contract on the part of the plaintiff and refusal to perform on the part of the defendant, a demand on the defendant for compliance with the contract and a discharge of the plaintiff. Count three is upon an account annexed, and alleges that: ‘All of said counts are for one and the same cause of action.’

‘At the conclusion of the evidence the defendant filed separate motions that a verdict be directed for the defendant on each count in the plaintiff's declaration.’ These motions were denied, and to each denial the defendant saved an exception. ‘The jury was fully and appropriately instructed as to the rights of the parties and returned a verdict for the plaintiff * * * on the third count of the declaration.’ The bill of exceptions contains all the evidence material to the issues raised.

Upon the reported evidence the jury would have been warranted in finding that in March, 1922, the plaintiff was employed by the defendant to assist him in the procurement of a site for the distribution, and a permit for the storage, of fuel oil in New York City; that at that time the defendant agreed to give the plaintiff $50 a week for expenses, which was satisfactory to the plaintiff; that the plaintiff and defendant went to Brooklyn, and on the way back to New York the defendant said: ‘We will be partners in this enterprise. * * * I am going to turn the Boston industries, the Ballard Oil Equipment Company, pany, Ballard Oil Company of Boston into this New York company, and if you can get the permit, I can have an association with Matt Brush, who stands ready to put $300,000 into this company.’ On the testimony of the plaintiff the jury could warrantably have found that at this first interview the defendant offered the plaintiff $15,000 a year for five years as a salary, and an equal division of the stock the defendant was to have in the new corporation; that the five-year proposition remained open until about the middle of May, 1922, when the defendant said: ‘Mr. Reuter, I am only going to pay you $15,000 for one year, and if you wish to continue longer than that period, still longer, I will enter into a new agreement with you. * * * We will make another agreement, providing you obtain this permit in three or four weeks, and I will promise you that if you obtain this permit in three or four weeks, I will organize the company within one week thereafter and you will be the manager of the company.’ The evidence warranted the further findings that it was understood between the plaintiff and defendant that ‘this arrangement for the payment of $15,000 was to go into effect * * * immediately, start on that day, and that the contract would be for one year only’; that the plaintiff replied to the above statement of the defendant, ‘I will go ahead with you on that basis'; and that the above described ‘arrangement’ was entered into about three weeks prior to June 6, 1922, that is, on or about May 15, 1922, as the declaration alleges.

It was admitted at the trial that the plaintiff procured for the defendant an option of purchase of land, where a permit was granted on June 6, 1922, through the efforts of the plaintiff; that the land was desirable as a site; and that ‘an operable permit’ meant a great deal-‘a permit meant an awful lot to us.’ The defendant testified, in substance, that he discharged the plaintiff within a few weeks of the time he finished his work and told him he did not need him any more; that he did not erect the tanks, never took advantage of the permit, never made a return of the plans for approval or filed them with the fire department; that ‘we turned the whole proposition down, * * * let the option go, until the whole thing lapsed.’ In response to the question what he intended to pay the plaintiff for obtaining the option and permit, he stated: ‘I expected to give him-depending upon the future; the profits that we made in the company-I expected to give him whatever I deemed was sufficient compensation for his work from time to time, and that, in my judgment, as it has in the past, rested with me, how I would take care of the employees of the company.’ He testified that the plaintiff's services were satisfactory up to the point where he found ‘sufficient reason’ for discharging him, the reason being that the plaintiff had attempted to make a written ‘commitment’ involving the company in the way of a guarantee of oil consumption which was enormous, and which the defendant refused to recognize, against the contention of the plaintiff that he was running the business, that he knew what he was doing and that he was going to mail the ‘commitment.’ He further testified that the conversation with and discharge of the plaintiff took place after the issuance of the permit; that before that time the plaintiff never made any commitments that would cause a breach between them; that the new corporation was formed after the issuance of the permit and Mr. Brush and Mr. Rockefeller were ‘in on it’; that instead of using oil from a terminal as proposed they proceeded to buy oil from the Standard Oil Company and he abandoned the project of the option and permit entirely.

Disregarding the form of the amended declaration, a verdicton the evidence could not rightly have been directed for the defendant. Rubin v. Huhn, 229 Mass. 126, 129, 118 N. E. 290, 4 A. L. R. 1190. The motions for a directed verdict on counts one, two and three of the declaration respectively were denied rightly. Outside the issue of the period of employment, counts one and two are essentially the same, and there is no material variance between the allegations and proof which would warrant a new trial. Count three, being an action on an account annexed was a proper form to use if the jury found, as they reasonably might have done on the evidence, that the contract was made by the defendant and that the terms of it were fulfilled by...