Summers v. Ralston Purina Co.

• Decision Date: 14 January 1954
• Docket Number: 6 Div. 172
• Citation: 69 So.2d 858,260 Ala. 166
• Parties: SUMMERS v. RALSTON PURINA CO.
• Court: Alabama Supreme Court

Page 858

69 So.2d 858

260 Ala. 166

SUMMERS v. RALSTON PURINA CO.

6 Div. 172.

Supreme Court of Alabama.

Jan. 14, 1954.

Jos. S. Mead, Birmingham, for appellant.

White, Bradley, Arant, All & Rose and E. Grant Fitts, Birmingham, for appellee.

This charge was refused to defendant:

'40. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the Bulletin of February 1, 1945, bound the defendant to pay plaintiff a bonus or commission on the Sherrel territory, you nevertheless must find from the evidence in this case that such contract was subsequently modified by the conversation of plaintiff with Cardinal at Jackson, Mississippi, in February, 1945, and plaintiff's continuing to work the Sherrel territory thereafter with knowledge that the defendant did not intend to pay him any bonus or commission on that territory.'

LIVINGSTON, Chief Justice.

The appeal is by the plaintiff in the court below from an order and judgment of the court granting defendant's motion for a new trial and setting aside a verdict and judgment for the plaintiff.

The action was brought by W. D. Summers against the Ralston Purina Company, a corporation, for the recovery of money allegedly due Summers by virtue of an alleged agreement between the two parties. The jury returned a verdict in favor of plaintiff and judgment was rendered thereon in the sum of $2,164.85, plus interest of $454.60, making a total of $2,619.45.

The only question for review here is the propriety of the trial court's action in setting aside the verdict of the jury and the judgment rendered thereon.

The complaint consisted of two counts. Count One is for money due on open account, and Count Two is for work and labor done. The complaint states that both counts are based upon the same transaction. Defendant pled, in short, by consent, the general issue, with leave, etc.

Defendant's motion for a new trial contained some 59 grounds therefor. The order granting defendant's motion for a new trial was general, but stated specifically that it was not based on 9 specified grounds. We will, therefore, not consider these specific grounds. But the rule is, of course, that if any one other ground was due to be sustained, the trial court was not in error granting defendant's motion to set aside the judgment.

The evidence shows that during October, 1944, appellant and appellee executed an employment agreement, the appellant to work for appellee as a salesman. By the terms of said agreement, territory assigned to appellant consisted of Monroe, Conecuh and Escambia Counties, in Alabama, as well as Santa Rosa and Escambia Counties in Florida. The whole of the five counties form a contiguous territory. In the fall of 1944, appellee had in its employ three other salesmen whose territory adjoined or was near that of appellant. These other salesmen were W. E. Sherrel, H. M. Nonnemacher and R. L. Carter, Jr.

In December, 1944, or early January, 1945, it became apparent that W. E. Sherrel was about to be drafted. He made arrangements to accept temporary employment with a war industry. As a consequence, J. C. Cardinal, Jr., Southeastern Sales Manager of appellee, undertook to arrange to have Sherrel's territory worked during Sherrel's temporary absence by the other salesmen mentioned. We state here that Cardinal's authority to bind appellee in the premises is not questioned.

There is conflict in the testimony with respect to the arrangements which were made for taking care of Sherrel's territory during his impending absence. Appellee's testimony tended to show that there was a conference between Cardinal, Summers and Nonnemacher in Mobile, Alabama, just prior to February 1, 1945, during which Cardinal informed Summers and Nonnemacher of Sherrel's expected temporary absence, and requested them to cooperate in handling the situation precipitated by the circumstances. Further, appellee's testimony tended to show that Cardinal proposed an arrangement to Summers and Nonnemacher, to which they agreed, whereby Nonnemacher would take over temporarily the three Alabama counties of Summers', and Summers, in turn, would take over all the counties in Sherrel's territory except the three farthest to the east, which would be taken over by Carter.

Appellant's testimony was to the effect that he thought he would get a bonus on the territory belonging to Sherrel and temporarily worked by appellant. Bonuses were generally earned by each salesman of appellee, under their respective contract, on all products sold over a minimum amount, as computed in conjunction with the salesman's expenses, upon a sliding scale point system.

Under date of February 1, 1945, Cardinal issued to Summers, Nonnemacher and Carter a bulletin, which in part, referred to the Sherrel territory, as follows:

'Temporarily, we will leave his district as an open district.'

The bulletin provided that Carter would temporarily work three counties of Sherrel's territory; that Summers would work all the remaining counties of Sherrel's territory in Alabama and Florida, and that Nonnemacher would temporarily work the three Alabama counties of Summers' territory. Further, said bulletin provided:

'There is to be no change in the present sales contracts of Nonnemacher, Carter or Summers.' (Emphasis added.)

Appellee contended that the bulletin, taken in connection with the alleged conversation between Cardinal, Nonnemacher and Summers clearly showed that there was to be no bonus paid on the Sherrel territory, while temporarily being worked by the other salesmen.

Appellant testified that during the first week of February, 1945, he visited Sherrel in order to gain information concerning the Sherrel territory, and also in order to find out whether he (appellant) would be rewarded with a bonus on sales within that territory. The evidence shows that Sherrel could give Summers no definite answer. This conversation evidently occurred after February 1, 1945, the date of the bulletin issued by Cardinal, but before said bulletin was received by Summers at his home in Atmore, Alabama.

Appellant also testified that shortly thereafter, he went to a sales meeting which was held in Jackson, Mississippi. Said meeting was held on the 8th and 9th of February, 1945. According to Summers' own testimony, Cardinal, while in Jackson, definitely told him that the Ralston Company had no intention of paying Summers any bonus whatsoever for working in Sherrel's territory. Furthermore, appellant admitted that the effect of Cardinal's statements was that Summers could 'either take it or leave it.' In other words, on either February 8th or February 9, 1945, the Ralston Company's representative told appellant, in no uncertain terms, that no bonus of any amount would be paid in relation to the disputed territory.

Any possible doubt which Summers might theretofore have had should have certainly been eradicated by Cardinal's unambiguous statement. Subsequently, the appellee continued to pay appellant a bonus only upon his old territory. Summers received a statement with the checks showing that the payments were applicable only to said territory.

Three principal issues are presented for our determination. First: Was the original employment agreement between appellant and appellee one terminable at will? Secondly: Did the bulletin of February 1, 1945, issued by the Ralston Company amount, in legal effect, to a promise to pay Summers a bonus on Sherrel's territory? And finally: What was the effect of the conversations between Cardinal and appellant in Jackson, Mississippi, during February, 1945?

I. The terms of the written agreement read, in part, as follows:

'Such employment to begin October 1, 1944 and end with termination of this agreement for any reason * * * the salary to be paid the Salesman shall be at the rate of $200.00 per month, payable monthly.'

The pertinent provision of the contract in Peacock v. Virginia-Carolina Chemical Co., 221 Ala. 680, 130 So. 411, was:

"Salary to be at the rate of $2000.00 per annum, payable monthly, beginning October 1, 1926."

This court held such phraseology merely fixed the compensation, not the duration of employment, and that said contract was properly terminated at the will of the employer. An indefinite hiring is presumed to be at the will of either party, in the absence of custom or facts showing a contrary intention. The mere fact that the Ralston Company each year effected a new written agreement with appellant is not, alone, sufficient to show any such contrary intention. No terms of the contract state that it was meant to endure for a definite period; thus, we choose to follow the general rule that contracts for services which do not specify as to duration are construed to be terminable at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699; Title Ins. Co. of Richmond, Inc. v. Howell, 158 Va. 713, 164 S.E. 387; Peacock v. Virginia-Carolina Chemical Co., supra; Island Lake Oil Co. v. Hewitt, Tex.Civ.App., 244 S.W. 193; Stonega Coke & Coal Co. v. Louisville & N. R. Co., 106 Va. 223, 55 S.E. 551, 9 L.R.A.,N.S., 1184; Greer v. Arlington Mills Mfg. Co., 1 Pennewill 581, 43 A. 609; Lambie v. Sloss Iron & Steel Co., 118 Ala. 427, 24 So. 108; Howard v. East Tenn., Va. & G. R. Co., 91 Ala. 268, 8 So. 868; Coffin v. Landis, 46 Pa. 426.

II. We must next determine whether the bulletin of February 1, 1945, amounted, in legal effect, to a promise to pay appellant a bonus on the territory in controversy. As previously stated, in said bulletin, the following is stated:

'There is to be no change in the present sales contracts of Nonnemacher, Carter or Summers.'

Upon examination of the original employment agreement, we find:

'3. That it is mutually agreed between the parties to this agreement that in event of any change of territory, after the execution of this agreement, such change shall not affect the other terms of this agreement, unless mutually agreed upon...