Menage v. Rosenthal

Morton, J. This is an action for the breach of a written agreement entered into between the plaintiff and the defendant wherein the latter agreed to employ the plaintiff as salesman for one year beginning January 1,1896. The plaintiff was discharged by the defendant on October 14, 1896, and the defendant refused to go on with the contract, and thereupon this action was brought. The case turns on the construction to be given to the agreement, the principal clause of which, so far as relates to the question now before us, is as follows: “3. The party of the first part [the defendant] hereby agrees to pay to the party of the second part [the plaintiff] ... a sum equal to seven and one half (7 1-2%) per cent of all the net sales of goods made by the party of the second part, and does hereby allow and permit the party of the second part to draw for his maintenance and support during the term of this agreement, a sum equal to one hundred ($100.00) dollars per week and such expenses as he may incur in travelling whilst in the performance of his duty as such salesman; and also in addition thereto ten [473] (10) per cent of the net profits that the party of the first part may realize in his said business, it being understood, however, that the commissions allowed by the party of the first part to the party of the second part and the ten (10) per cent of the net profits as hereinabove referred to, are not to be drawn by the party of the second part until the end or termination of this agreement; excepting the sum which the party of the second part is hereby allowed to draw for his individual maintenance and support and for travelling expenses, which last named sum, to wit, the sum allowed for maintenance and support and travelling expenses shall be deducted from the amount of commissions and the ten per cent above referred to which at the termination of this agreement it shall be found the party of the second part is entitled to receive from the party of the first part.” The plaintiff contends that, according to the terms of the contract, he is entitled to $100 a week during the year for which it was to continue, without regard to the percentages on the sales and profits. In other words, his contention is, in substance, that the contract amounted to a guaranty of $100 a week for his support and maintenance during the year which it covered. The defendant contends that the $100 per week is to be regarded as an advance on account of the percentages to which it might be found that the plaintiff was entitled at the termination of the agreement. We think that this is the true construction. The agreement provides in substance, as we construe it, that the defendant shall pay the plaintiff for the services to be rendered by him a sum equal to seven and a half per cent on the net sales of all goods made by the plaintiff and ten per cent on the net profits of the defendant’s business. The sum thus agreed upon is to be paid at the end of the agreement and in the meantime the plaintiff is to be allowed and permitted to draw for his maintenance and support a sum equal to $100 per week, which is to be deducted from the sum which it shall be found the plaintiff is entitled to receive at the termination of the agreement. The $100 per week is spoken of as something to be drawn by the plaintiff and also as something which the defendant is to allow and permit him to draw, expressions which are inconsistent with anything in the nature of a guaranty. It is true that there is a provision that the seven and one half [474] and the ten per cent are not to be “ drawn ” by the plaintiff till the end of the agreement. But manifestly this relates to what will then be due to the plaintiff and has no tendency to show that the $100 per week is payable absolutely. The defendant also contends that the plaintiff is not entitled to recover upon his declaration. Assuming, without deciding, that the question of pleading is properly before us, we think that the action can be maintained upon the second count. A right of action accrued to the plaintiff as soon as he was discharged by the defendant and the defendant refused to go on with the contract. In this respect the case differs from Porter v. American Legion of Honor, 183 Mass. 326, relied on by the defendant. The jury found for the plaintiff under instructions which permitted them to find that he was entitled under the agreement to $100 per week absolutely for the rest of the term, less any sum which he could have earned in his trade by getting another job. This was error, and the result is that according to the terms of the report the verdict must be set aside and a new trial granted. So ordered.