Sermuks v. Automatic Aluminum Heel Co.

• Decision Date: 29 June 1926
• Citation: 153 N.E. 8,256 Mass. 478
• Parties: SERMUKS v. AUTOMATIC ALUMINUM HEEL CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 478

153 N.E. 8

SERMUKS

v.AUTOMATIC ALUMINUM HEEL CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1926.

Report from Superior Court, Suffolk County; P. M. Keating, Judge.

Action of contract by Carl W. Sermuks against the Automatic Aluminum Heel Company and others to recover on contract for royalties for aluminum heels. Verdict for plaintiff, and case was reported. Judgment for plaintiff on verdict.

Defendant's sixteenth and eighteenth requests were as follows:

‘(16) If the machine as produced by the plaintiff was imperfect because not supplied with a sufficient compressor, or because it contained only a die capable of producing one heel at a time, or because it could not be operated safely, efficiently, or otherwise so as to produce aluminum heels of commercial quality and quantity, the plaintiff cannot recover.’

‘(18) If the installation of a sufficient air compressor was necessary in order to make the machine operate effectively, and this was not done, the plaintiff cannot recover.’J. C. Johnston and W. H. Wood, both of Boston (J. F. Meagher, of Boston, of counsel), for plaintiff.

E. Field, of Boston, for defendants.

CROSBY, J.

On March 15, 1920, the plaintiff entered into a contract with the defendant by the terms of which he agreed to work for the term of one year from date as superintendent of the defendant's die-casting department at a salary of $75 a week, payable weekly, and a bonus of $75 for each die-casting die made during that period. The plaintiff worked under this contract until August 4, 1920, when the parties entered into another contract in writing, the essential parts of which are as follows:

‘1. The parties to this agreement have already entered into a contract of employment of the said party of the first part, by the party of the second part, dated March 15, 1920, which contract is hereby confirmed.

‘2. In the course of his employment, the party of the first part agrees to use his best endeavor to invent and perfect a new die-casting machine for making aluminum heels.

‘3. If the party of the first part is successful in perfecting a die-casting machine as aforesaid, the party of the second part agrees to accept same, and use it in the manufacture of its entire product of aluminum heels.

‘4. The party of the second part agrees to pay as a royalty for his invention, provided same is successful, one quarter of one cent royalty for each pair of aluminum heels manufactured by the party of the second part during the period of five years from the date of this agreement, subject to conditions stated in paragraph five of this agreement.

‘5. It is further agreed that whenever the royalty aforesaid does not equal seventy-five (75) dollars per week, the salary of the party of the first part, as provided in contract of March 15, 1920, no royalty shall be paid, but that whenever the royalty exceeds seventy-five (75) dollars per week, then said royalty shall be paid instead of the weekly salary of seventy-five (75) dollars as aforesaid; it being understood that the royalty is to be paid in lieu of salary, whenever it exceeds the agreed weekly salary of seventy-five (75) dollars.’

The plaintiff was paid in full for his services to March 15, 1921, the period covered by the original contract. The controversy arises out of the provisions of the second contract. The plaintiff contends that he produced a machine which, in accordance with the contract, the defendant was bound to accept and use, and that it should account to him for the royalties accruing to him under the contract, and pay him $75 a week for every week in which they were less than $75, during the ‘period of five years from * * * August 4, 1920.’ It is the contention of the defendant that the plaintiff failed to invent and perfect the machine as called for by the contract, and therefore the company is not liable in this action for damages for alleged breach of the contract. The case was referred to an auditor who found in accordance with the contention of the defendant. Afterwards, at the trial in the superior court, the jury returned a verdict in favor of the plaintiff. The defendant excepted to the refusal of the trial judge to direct a verdict in its favor, to his refusal to give certain requests for rulings, and to parts of the charge. The judge reported the case to this court. It was agreed that, if the plaintiff was not entitled to recover any damages accruing after the date of the writ, the verdict, if for the plaintiff, should be limited to $1.

The evidence showed that the work done by the plaintiff in the construction of the machine was performed in the defendant's factory with materials furnished by the defendant; that the machine was completed about October 1, 1920. The authority of the officers of the corporation to make the contract is not raised. The evidence submitted to the jury, besides the auditor's report, consisted of the testimony of several witnesses. It was conflicting, the principal question in dispute being whether the plaintiff had performed his contract ‘to invent and perfect a new die-casting machine for making aluminum heels.’ The issue presented was one of fact and we cannot say that as matter of law the conclusion reached by the jury in favor of the plaintiff was unwarranted.

There was evidence which justified a finding that the defendant agreed to furnish all the materials necessary for the construction of the machine. Philip Finberg, an officer of the defendant, testified that he ‘did not have anything to do with Mr. Sermuks' work on the machine only to supply him and help him get the different things necessary; that Sermuks asked the witness from time to time for the different things which he said he needed in connection with the work,’ and that they were furnished. There was other testimony from which it could be found that the defendant agreed to furnish such materials. David Finberg, who was the defendant's president in 1920 and 1921, testified that the company had spent between $10,000 and $12,000 in materials for the machine. The judge instructed the jury in substance that, if they believed the testimony of the plaintiff and of the defendant's witnesses, they would be warranted in finding there was an agreement, express or implied, between the parties that the defendant should furnish the plaintiff the materials and means reasonably necessary to make the machine. These instructions were correct.

It could have been found from the conduct of the parties that an independent collateral agreement was entered into by which the defendant was to furnish all the materials required to construct the machine. It could have been further found that the plaintiff repeatedly requested the defendant's officers to furnish him with a proper pyrometer for use on the machine; that the one furnished was old, inaccurate and valueless; that the defendant's officers told him they would buy him a new one but that they failed to do so; that an air compressor which takes air into the machine and pumps it to the supply tank was furnished to the plaintiff by the defendant; that its greatest capacity was one hundred and twenty pounds to the square inch; that the plaintiff told the defendant's officers this air compressor was inadequate, to obtain good results he needed one that would produce from two hundred and fifty to three hundred pounds pressure; that they furnished him another, not new, and with a maximum capacity of one hundred and eighty pounds; that he told them he could do nothing with it and requested one of three hundred pounds pressure, which they refused to furnish. There was evidence from which the jury were warranted in finding that if a proper pyrometer and air compressor had been furnished by the defendant the machine would have been in all...