Morrow v. Tunkhannock Ice Co.

Opinion by Mb. Justice Potteb, On October 24, 1899, Cyrus C. Marrow entered into a written agreement with the Tunkhannock lee Company by which he agreed to accept the' position of general sales agent for the company for a term of five years from January 1,1900, “ and as such to devote his time and ability to the best interest and welfare of the said company; ... to solicit trade, negotiate and make sales of the entire capacity of the said company, attend to the collection of the accounts .... adjust all freight rates and in general arrange for the sale and delivery of the ice product of the company,” and make daily reports of all sales direct to the office of the company. The agreement provided that “in consideration of the faithful performance of his duties by said Morrow ” the company would employ him as general sales agent for the term stated, and would pay “ for his services during the said term if he shall so long remain in the employ of the company as 'aforesaid, $1.00 per car for ice shipped from the company’s plant,” with a certain exception; all payments to be made to said Morrow on the fifth of each month for deliveries of ice made the preceding month. The agreement further stipulated that Morrow should give preference of sales to the company’s ice until it was disposed of. And “ if said Morrow fails to attend to the duties of his employment, to the injury or detriment of the said company’s interests, then this agreement may be canceled at the option of the Tunkhannock Ice Company, without notice to said Morrow or the payment to him of any compensation or commission' for the remainder of the term.” [452] On September 8,1900, the ice company wrote a letter to Morrow in which he was formally notified that by reason of the breach upon his part of the contract of October 24, 1899, “ the same has been considered void and of no effect from February 1, by which time we had ascertained that you were making no effort to place our ice, and in fact did not sell any. We are fully prepared to pay, and inclose herewith our check for $82.00 for D. L. & W. ice sold as per agreement between you and Mr. Daub. During the past season you have failed to attend to your duties under the contract, to the injury and detriment of this company's interests.” It appears from the evidence of Mr. Daub, the president of the defendant company, that the discharge was given in a conversation between Daub and the plaintiff, and, as he said, “ it was understood that he had performed no duty for us and of course he could expect no compensation.” Afterwards this witness fixed the date of the discharge as March 15, 1900. This testimony does not seem to have been contradicted by plaintiff. On February 7, 1901, Morrow brought this action of assumpsit against the ice company, and in his statement declared upon the written agreement, averred performance on his part, and claimed the stipulated compensation from January 1,1900, to January 5, 1901, at the rate of $1.00 per carload of ice shipped by the company during that time. The defendant pleaded non assumpsit. On the trial, plaintiff presented evidence to show performance, while defendant sought to prove that plaintiff had not discharged his duties. In addition, a witness, who was one of the managers and treasurer of the Mountain Ice Company, testified that in Februaiy,1900, Morrow called on him and told him that he had from 15,000 to 25,000 tons of summer ice, and wanted to know if the witness’ company could handle it. He said the ice cost him sixty-five cents to seventy cents, and offered to load it on the cars of witness’ company, and charge to them at $1.25; they to sell the ice at the other end and bear the expense of doing so, and the profits to be divided between the company and Morrow. They were to pay the original price (sixty-five cents to seventy cents) to the company that furnished the ice. Morrow did not state what particular pond the ice was taken from, but merely stated that he had it to sell and that it was mountain ice. The sale [453] was not made, as Morrow reported that the ice had been disposed of elsewhere. But if the evidence as to this effort was believed, it showed bad faith on the part of plaintiff, in that instead of trying to secure the highest market price for the defendant’s product, he was endeavoring to make a secret profit for himself, at its expense. The trial judge left it to the jury to find whether or not the plaintiff had performed substantially his contract; if so, he was entitled to recover. The jury found for the defendant. The plaintiff has appealed, and has here assigned the instructions of the trial court as error. Appellant contends that the agreement established the relation of master and servant between the defendant company and himself, and that even if the jury found the discharge was rightful, he was entitled to the wages of his service as long as that service was rendered to his employer. And that if the discharge was not rightful, he was entitled to receive his entire claim. The appellee denies that the agreement constituted the relation of master and servant, and contends that in order to recover at all, appellant was bound to first show performance on his part, which he failed to do to the satisfaction of the jury. He contends further that he was not only bound to do this under the law, but also under the pleadings which raise that express issue. It is further urged on behalf of the appellee that, even if it should be conceded that the relation between the parties was that of master and servant, yet the unfaithfulness of the appellant, if found by the jury, was sufficient to prevent recovery of wages and compensation by him. By the terms of the contract the plaintiff was to sell ice for the defendant. Plaintiff acquiesced in this view and on the trial undertook to prove performance. Upon the other hand, the evidence upon the part of the defendant was to the effect that the plaintiff wholly neglected his duty, and had made no sales at all under the contract. In this situation it was for the jury to decide between the parties as to this disputed question of fact, and this without regard to whether the contract was entire, or severable. We do not regard this as a casein which the relation of master and servant existed, it was an employment to make sales on commission. The situation here is totally different from that which prevails where a servant is employed [454] under the eye or the general observation of the master. The verdict of the jury was against the claim made by the plaintiff, and established the fact, that he had not performed the services called for under the contract. He was not, therefore, wrongfully discharged. Allen v. Engineers’ Co., 196 Pa. 512, can have no application here, for in that case an employee was wrongfully discharged. In the present case, we have the plain finding that the plaintiff had not performed the service which lie had agreed to render. If this is true, there is no reason why he should be paid anything, for he has earned nothing. It is not necessary, therefore, to consider whether the contract was entire, and whether, if so, the plaintiff was entitled to recover for services rendered up to the time of dismissal. We think it is clear that the intention of the parties to this contract, was to provide, through the agency of the plaintiff, for the sale of the entire product of the defendant company. Everything else that the plaintiff was to do was incidental to this, which was the main purpose of his employment. It mattered not whether he made the sale in one day, or by efforts extending through many days. The service he was to render was essentially the selling of the defendant’s crop of ice. This he failed to do, not merely in part, but wholly, and by reason of this failure, it may fairly be said that he rendered no service, for which he was under the contract entitled to compensation. He was not to be paid for doing nothing, but for doing something. The small amount of ice which he did sell and for which he was paid, was under a special agreement and not under the terms of this contract. We see no error in the theory upon which this case was tried nor in the manner of its submission to the jury. The assignments of error are overruled and the judgment is affirmed.