Ullmann v. May, 30767.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: TURNER
• Citation: 147 Ohio St. 468,72 N.E.2d 63
• Parties: ULLMANN v. MAY.
• Docket Number: No. 30767.,30767.
• Decision Date: 28 February 1947

147 Ohio St. 468
72 N.E.2d 63

ULLMANN
v.
MAY.

No. 30767.

Supreme Court of Ohio.

Feb. 28, 1947.

[72 N.E.2d 63]

Syllabus by the Court.

1. Where a written agreement is plain and unambiguous it does not become ambiguous by reason of the fact that in its operation it will work a hardship on one of the parties thereto and corresponding advantage to the other. Ohio Crane Co. v. Hicks, 110 Ohio St. 168, 143 N.E. 388, approved and followed.

2. Courts do not relieve a party competent to contract from an improvident agreement in the absence of fraud or bad faith.

3. A person competent to contract who, pursuant to a written agreement with another has performed services, is entitled to compensation therefor only in accordance with the terms of such bargain, in the absence of fraud, illegality or bad faith.

4. In the absence of fraud or bad faith, a person is not entitled to compensation on the ground of unjust enrichment if he received from the other that which it was agreed between them the other should give in return.

Appeal from Court of Appeals, Cuyahoga County.

Action by Martin P. Ullmann against George S. May to recover commissions allegedly due under contract of employment. A judgment of the Municipal Court in favor of plaintiff, 17 Ohio Supp. 85, was modified by the Court of Appeals and, as modified, affirmed, 70 N.E.2d 507, and the case was brought to the Supreme Court following the allowance of a motion to certify the record.-[Editorial Statement.]

Judgment of Court of Appeals affirmed.

WEYGANDT, C. J., dissenting.

Ullmann brought an action in the Municipal Court of Cleveland for $4,000 due for services as a salesman, against George S. May d. b. a. George S. May Company. In his third amended petition Ullmann set up three causes of action, the first and second causes being on a contract and the third cause being upon the quantum meruit. May filed an answer admitting the contract and the cancellation thereof. May further alleged in his answer that there was due to Ullmann, the plaintiff, the sum of $139.83, tender of which had been made to Ullmann. May denied that any further or additional sums of money were due Ullmann and denied wrongful termination of the contract.

The Municipal Court rendered judgment in favor of Ullmann and against May for the sum of $4,000 and costs.

Upon appeal to the Court of Appeals the judgment of the Municipal Court was modified by reducing the judgment in favor of Ullmann to $189.50 and the judgment as so modified was affirmed.

The case was tried upon a stipulation of facts including the contract and certain correspondence between the parties. It was stipulated that Ullmann remained in the active employ of May until December 23, 1944, when Ullmann received a letter from May dated December 19, 1944, terminating the contract. It was further stipulated:

‘(5) That on December 23, 1944, and thereafter, the defendant was servicing certain clients procured for the defendant by the plaintiff, to wit: Cleveland Trencher Company and Buckeye Brass Company, both procured by plaintiff many weeks prior to December 23, 1944, and upon whose payments plaintiff received commissions prior to December 15, 1944;

[72 N.E.2d 64]

‘(6) That subsequent to December 15, 1944, and up to and including the period of time covered by the third amended petition, the defendant [May] made additional collections from said clients in the sum of seventy-nine thousand dollars ($79,000), no part of which was ever paid to plaintiff [Ullmann];

‘(7) That the commissions on said collections are to be computed at five per cent (5%) in the event plaintiff prevails in this action.’

Under item (9) it was stipulated that defendant had tendered to plaintiff the sums of $22.50 and $167.

Under item (10) it was stipulated: ‘That plaintiff has not been informed by the defendant of minimum or ‘must’ standards of employment or production.'

The contract between the parties recited that the ‘employer is engaged in the business of management and industrial engineering and the business of installing systems covering sales and administrative expense, budgets, accounting and cost methods, overhead rates, factory, clerical, direct and indirect labor, production planning and scheduling, inventories, and other cost elements.’

The employer agreed to pay Ullmann the commissions and bonuses set up in a schedule in the contract. The contract contained also the following provision:

‘(c) In addition to payment due under provisions above, commissions will be paid employee as shown below on all sums of money billed to, and collected from each individual client personally procured by the employee; said commissions to be paid only during the time this agreement remains in full force and effect.’ (Italics ours.)

It was mutually agreed that the employee should ‘enter into the service of the employer, and employer agrees to employ said employee in and about its aforesaid business beginning the 31st day of January, 1944, and continuing until terminated by the action of the parties hereto as herein provided.’ (Italics ours.)

The contract contained the further provision that:

‘(a) This contract of employment may be terminated by either of the parties here to upon giving to the other party not less than seven days' written notice of the intention to cancel this agreement * * *.’ (Italics ours.)

Ullmann agreed also, inter alia, that during the term of his employment he would devote his entire time and attention and give his best efforts and skill as a salesman exclusively to the business and in and about the interests of employer, and would perform such services in and about the business of employer as may, from time to time, be assigned to him, and would in all respects do his utmost to enhance and develop the best interests and welfare of employer and its business.

The letter of December 19, 1944, from May to Ullmann was as follows:

‘This is to advise you that we are cancelling your special representative working agreement, dated January 31, 1944, effective date December 16, 1944. This notice is being sent to you after a thorough discussion with your regional manager, Mr. G. M. Noonan, and your district manager, Mr. George Mathews, as well as Mr. Moss, the executive supervisor.

‘We regret that our association did not prove to be mutually profitable, and in your particular instance your attitude has been excellent; however we do have must performance standards, and under the circumstances have no other alternative.

‘We take this opportunity to wish you the very best of luck for the future and if we are able in any way to assist you in making a new connection, do not hesitate to call on us.

‘If you happen to be in Chicago, we will be happy to see you if you care to drop in.’

In answer to the foregoing letter Ullmann wrote May's representative under date of December 24, 1944, a letter in which the following appeared:

‘In answer to your letter of December 19th cancelling my special representative working agreement I have the following questions to ask: (1) According to my contract I am to be given seven days written notice. Your letter of the 19th of December terminates me as of the 16th of December which seems rather odd arithmetic.

[72 N.E.2d 65]

In accordance with the contract the termination should be as of the 26th of the month as I have worked through the 23rd at which time I received your letter. I am submitting my expense account up to that date. (2) What provision is to be made for commissions due me for the Continental Lithograph Co., Carey Machine and the current billing on Cleveland Trencher? The least that you can do for a man when you let him go is to let him know how he stands financially. * * *

‘In the second paragraph of your letter you say you have must standards. If you check back in your records you will find that for the past year a considerable amount of the expensive talent has come out here in Cleveland in order to show us how to get more production. L. S. got one deal here. T. M. none that I know of and to my knowledge N. only got one or two that stuck. It only proves to me that...