Smith v. Graham Refrigeration Products Co.
| Decision Date | 04 November 1955 |
| Citation | 129 N.E.2d 884,333 Mass. 181 |
| Parties | Frederick W. SMITH v. GRAHAM REFRIGERATION PRODUCTS COMPANY, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ralph W. Crowell and John W. Hird, II, Springfield, for plaintiff-appellant.
William A. Godfrey and William C. Giles, Jr., Springfield, for defendant.
Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ. SPALDING, Justice.
In this action of contract the plaintiff seeks to recover sums allegedly due from the defendant for salary and commissions. The case was referred to an auditor, whose findings of fact were not to be final. After the filing of the auditor's report neither party reserved the right to introduce further evidence and the case was heard by a judge on the plaintiff's motion for judgment on the auditor's report. The judge ordered judgment for the plaintiff in the amount of $1,558.81 subject to the plaintiff's exception. It is the plaintiff's contention that, for reasons that will hereinafter appear, he is entitled to $4,500 more than the sum awarded by the judge.
Facts found by the auditor include the following: On January 1, 1952, the plaintiff commenced working for the defendant, a corporation organized under the laws of this Commonwealth. There was no written agreement between the plaintiff and the defendant touching the compensation to be paid to the plaintiff. On February 5, 1952, Raymond S. F. Graham, who was the beneficial owner of all of the outstanding stock of the defendant, entered into a written agreement with the plaintiff. Under this agreement the plaintiff purchased one half of the stock of the defendant owned by Graham and it was agreed that the defendant was to pay to the plaintiff the same salary as Graham was receiving on January 1, 1952 ($1,000 per month plus expenses), and Graham was to be paid a like amount. The plaintiff received the sum of $700 per month plus expenses from January 1, 1952, through June, 1952. During this period the balance of $300 was withheld each month by the defendant at the plaintiff's request.
In June of 1952, because of the defendant's financial condition, the plaintiff and Graham, who together owned all of the stock of the defendant, orally agreed that no further salary would be drawn by either 'until the defendant's financial condition warranted such payment.' 'The defendant's financial condition did not and does not warrant such payment but became steadily worse from June 1 to and including the time of trial.' Since July 1, 1952, in compliance with this agreement neither the plaintiff nor Graham has drawn any salary. On November 15, 1952, the plaintiff voluntarily ceased working for the defendant.
The auditor found that the amount due the plaintiff was $1,800, representing the portion of the defendant's salary ($300 per month) retained by the defendant during the six months' period from January to June. Adjustments for other transactions, which are not in dispute, reduced this amount to $1,558.81, and that was the amount fixed by the judge in his order for judgment. The auditor found that an additional sum of $4,500, representing the plaintiff's salary from July 1 to November 15, was 'not due or payable until the financial condition of the defendant * * * [warranted] its payment.' The judge by not including this sum in his order for judgment obviously reached the same conclusion.
The plaintiff contends that the modification of the original agreement in June whereby neither the plaintiff nor Graham would draw any salary 'until the defendant's financial condition warranted such payment' is too vague and indefinite for enforcement. Thus, it is argued, the agreement must be read without the purported modification, with the result that the $4,500 is due now.
The defendant argues that it is not open to the plaintiff to make this argument on this record since his remedy was either to move for recommittal of the auditor's report or to move to strike the offending portion of the report when it was offered in evidence and the plaintiff did neither. We do not agree. If the plaintiff were attempting to challenge findings of fact made by the auditor there would be merit in the defendant's contention. Boston Box Co., Inc., v. Shapiro, 249 Mass. 373, 377, 144 N.E. 233; Solomon v. Boylston National Bank, 269 Mass. 589, 594, 169 N.E. 518; Petitti v. Perriello, 305 Mass. 274 25 N.E.2d 711; Old Mill Point Club, Inc., v. Paine, 308 Mass. 505, 506, 33 N.E.2d 257; Papetti v. Alicandro, 317 Mass. 382, 58 N.E.2d 155, G.L. (Ter.Ed.) c. 221, § 56. But the plaintiff is challenging not the auditor's findings of fact but rather his conclusion of law based on those findings. Where the conclusion in an auditor's report in favor of one party is in effect a ruling of law, and it appears from facts found that the ruling should have been for the other side, the trial court or this court can correct the error and order that judgment be entered in conformity with the facts found. See Fisher v. Doe, 204 Mass. 34, 40, 90 N.E. 592.
Turning now to the merits, we are of opinion that the modification of the contract was not too vague and uncertain to be enforceable. When the original agreement was modified so that the plaintiff and Graham were not to draw their salaries 'until the defendant's financial condition warranted such payment' the undertaking of the defendant became in effect a promise to pay when able. A promise of that sort is enforceable. But by the weight of authority such a promise is conditional and is enforceable only on proof that the ability exists. Randidge v. Lyman, 124 Mass. 361; Richardson v. Bricker, 7 Colo. 58, 60, 1 P. 433; Van Buskirk v. Kuhns, 164 Cal. 472, 129 P. 587, 44 L.R.A.,N.S., 710; Walter Denney & Co. v. Wm. D. Wheelwright & Co., 60 Miss. 733; Western Wheel Scraper Co. v. Spitcaufsky, 199 Mo.App. 513, 204 S.W. 34; Flather v. Economy Slugging Machine Co., 71 N.H. 398, 52 A. 454; Tebo v. Robinson, 100 N.Y. 27, 2 N.E. 383; Williston on Contracts ...
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