White v. Lumiere N. Am. Co., Ltd.

Decision Date29 October 1906
Citation79 Vt. 206,64 A. 1121
CourtVermont Supreme Court
PartiesWHITE v. LUMIERE NORTH AMERICAN CO., Limited.

Exceptions from Chittenden County Court; George M. Powers, Judge.

Action by Frederick J. White against the Lumiere North American Company, Limited. From a judgment in favor of plaintiff, defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and HASELTON, JJ.

V. A. Bullard and R. E. Brown, for plaintiff. Powell & Powell and W. L. Burnap, for defendant.

WATSON, J. The contract in question, dated September 5, 1901, was entered into by the defendant as the party of the first part, and by the plaintiff as the party of the second part. It contains clauses material in this case as follows: (1) "The party of the first part hereby agrees, and doth hereby employ the party of the second part for the period of five years from the date hereof as a permament member of its advisory or executive board of directors in America, and also to supervise and protect the interests and business generally of the party of the first part." (2) "As remuneration for the said services the party of the first part agrees to pay the party of the second part an annual salary of four thousand eight hundred dollars per year for the first three years of this agreement and the fourth year an annual salary of six thousand dollars per year, and the fifth year an annual salary of seven thousand two hundred dollars, the above-mentioned salary and remuneration to be paid to the party of the second part in monthly installments on the first of each and every month, exclusive of expenses," etc. (3) "In consideration of the agreement of the party of the first part the party of the second part hereby undertakes and agrees to devote his entire time for the above-mentioned period of five years in the service of the party of the first part as a permanent member of the advisory or executive board of directors aforesaid and in the protection, supervision, and conduct of the business generally of the party of the first part, to the best of his ability."

The defendant is an English company organized under the laws of the kingdom of Great Britain, with its principal office in the city of London. The purpose and object of the company was to acquire the right to manufacture, exploit, and sell photographic dry plates produced by what is known as the "Lumiere Process." This process was controlled by what is called here the "French Company." The latter company was the promoter of the English Company, and the owner of more than half of its capital stock. The defendant's plant, located at Burlington in this state, was completed and ready for occupation in February, 1903, and the defendant had notice thereof from the plaintiff, who, in all respects, faithfully and to the defendant's satisfaction performed his part of the contract up to and including the 15th day of October, 1903, when he received notice from the defendant that its entire plant and property, real and personal, at Burlington, had been leased to the French Company, and had passed into its hands for a period exceeding the unexpired portion of the plaintiff's term of employment. Notice of this fact was by letter, dated London, October 7, 1903, in which the defendant further stated that the French Company intended to conduct the business themselves in accordance with their own ideas with the staff which they were sending from Lyons for that purpose, and which they considered was sufficient for the initiatory period, and for the training of the staff, etc. And "under those circumstances, the mission which has been entrusted to you for the construction of the manufactory being terminated, and the position which had been reserved for you as a member of the advisory board not having to be filled during a period, the duration of which it is impossible to foresee, we beg you to cancel the powers with which you have been entrusted, and which will now be unnecessary, and to leave the field absolutely free to the staff delegated by Messrs. Lumiere, which will arrive at Burlington on the 19th of October, and to furnish to this staff all the means of organizing the business in accordance with the instructions which it has received from Messrs. Lumiere. The Lumiere Society will, of course, continue to pay you your salary on the sole condition on your side to remain at its entire disposition, in case, in the future, they should think proper to make use of your business experience in America, and of your high commercial ability. If you should not be disposed to accept such a proposition which will oblige you to remain without occupation, at Burlington, and if you should desire to be at liberty to employ your energies in another business, we should be quite disposed to discuss with you any proposals for rescinding the agreement with the Societe Lumiere et Fils, who have now the entire control of our affairs, which agreement has still three years to run." The plaintiff did not accept a position with the French Company under the terms mentioned in the foregoing letter, and on the 19th day of October, 1903, this suit was commenced against the defendant for breach of contract During the introduction of evidence the court below held as a matter of law that this letter was not in itself such an essential breach of the contract as warranted the plaintiff in treating the contract as having been terminated thereby. An exception was taken by the plaintiff to this ruling, but it is not for consideration, since the case is here only on questions saved by the defendant At the close of the evidence the defendant moved for a verdict on the ground that the consummation of the lease whereby the entire plant, assets, and business of the defendant company passed into the hands of the French Company for a period extending beyond the limit of plaintiff's employment, did not so far put it out of the defendant's power to perform its contract with the plaintiff as to amount to a revocation of the contract Whether this motion should have been granted is a question for consideration.

In support of the motion it is urged that the essence of the contract, as far as the plaintiff was concerned, was the salary and compensation which he was to receive under it; that whether work should be exacted of him was a matter wholly with the defendant, not of the essence of the obligation, and if the plaintiff received his salary to the end of the term of his contract he was not to be heard to complain because he was given no work; that the giving of the lease in no way prevented the defendant from paying the plaintiff his salary as it should become due; and that since the letter of October 7th, as interpreted by the court, did not constitute an essential breach of the contract, and there was no salary due the plaintiff when he brought this suit, the motion should have been granted. On the other hand, it is argued that the giving of the lease, together with the notice to the plaintiff contained in the letter, constituted an entire revocation of the contract and terminated it.

As already observed the defendant by the terms of the contract agreed to and did "employ" the plaintiff for the period of five years. Whether the word "employ" as there used might properly be construed to mean that the defendant would keep the plaintiff supplied with actual work we do not consider; for, clearly, the intention of the parties was that it should not imply less than that the defendant should keep the plaintiff in its service throughout the term specified. This is of the essence of the contract, and to this extent at least, the defendant was bound to perform. Emmens v. Elderton, 4 E. L. Cas. 624. Did the defendant do this? No question is made but that by its lease the defendant was made powerless to furnish the plaintiff with work, and we think it also thereby severed the relation of master and servant. The defendant informed the plaintiff by the letter of October 7th that the leasing of the business to the French Company was an accomplished fact, and that Gentlemen Lumiere had taken on themselves, personally, the responsibility of starting the business from both the commercial and technical point of view. The plaintiff was therein asked to cancel the powers with which he had been entrusted and to leave the field absolutely free to the staff delegated by Messers. Lumiere. He is also there told that the "Lumiere Societe," which means the French Company, would, of course, continue to pay him his salary on the sole condition on the part of the plaintiff that he remain at its entire disposition, in case, in the future they should think proper to make use of his experience and ability. But that if he should not be disposed to accept such a position, and if he should desire to be at liberty to employ his energies in another business, the defendant would be quite disposed to discuss with him "any proposals for rescinding the agreement with the Societe Lumiere et Fils, who have now the entire control of our affairs, which agreement has still three years to run." The fair interpretation of this part of the letter is that all the defendant's rights to the plaintiff's services by contract had been transferred with the property and business to the French Company by the lease. Manifestly, the defendant so understood it, since, otherwise, there would have been no occasion to discuss proposals for rescinding the agreement with the French Company then in control of the affairs, as lessee. And that the agreement with the plaintiff is the one to which reference is there made appears by the last clause in the same connection, "which agreement has still three years to run."

The record shows no other agreement of which this could have been said. Thus, the defendant, as far as it had power so to do, disposed of all right to the plaintiff's services for the balance of his term of employment. But the employer could not get rid of its...

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