Sobel v. Signal Shoe Co.

Field, J. This is an action to recover under a written contract dated January 31, 1931, additional compensation as a salesman for the period from January 1, 1931, to November 9, 1931, when, as the plaintiff alleges, his employment by the defendant was terminated by the defendant. The writ is dated November 19, 1931. A verdict for the defendant was directed. The plaintiff excepted to the direction of the verdict and to the exclusion of evidence. The written contract provided for the employment of the plaintiff by the defendant “as salesman for a period of two years commencing January 1, 1931, at a salary of One Hundred Twenty-five Dollars ($125.00) per week.” Material portions of the written contract dealing with addi [288] tional compensation are as follows: “On or before April 1, 1932, said Company shall, in addition to said salary, credit said Sobel with five per cent (5%) of the net earnings of the Company for the year 1931, after deduction for reserves for depreciation, etc., as shown on the annual certificate of condition filed at the State House, or Twenty-five Hundred Dollars ($2500.00) whichever is the greater amount. Said additional credit shall not, however, be paid in cash, except as hereinafter provided, but shall be credited to said SobeFs account, to be applied against purchases of stock in said Company, as hereinafter recited. [There was a similar provision for crediting ten per cent of net earnings on or before April 1,1933.] . . . When said credits equal an amount sufficient to purchase five per cent (5%) of the Common stock of said Company at One Hundred Sixty Dollars ($160.00) per share, said Company agrees that it will sell or cause to be sold to said Sobel, to be paid for by the cancellation of said credits, five per cent (5%) of its common stock, neither more nor less. Nothing herein contained shall prevent said Signal Shoe Company from discharging said Sobel, or shall prevent said Sobel from leaving the employ of said Company at any time, with or without cause; but in the event that said SobeFs employment is to be terminated by said Company, said Company shall pay to said Sobel an amount equal to the credits at that time accumulated to his account, in cash; but if said Sobel shall leave the employ of said Company of his own volition, then said Company shall pay to said Sobel one-half of said accumulated credits, in cash.” There was conflicting evidence as to the length of time the plaintiff worked for the defendant and as to who terminated the employment. This action, however, was brought before the end of the first year of the plaintiff’s employment under the contract. The verdict was directed rightly. Whether the plaintiff or the defendant terminated the plaintiff’s employment, it was, so far as appears, terminated rightfully. The terms of the written agreement with reference to additional compensation are not ambiguous. They clearly contemplate [289] that, the amount of the plaintiff’s compensation shall be determined on the basis of the net earnings of a business year which corresponds to the calendar year. The computation is to be based on an annual State return. There is nothing in the instrument to indicate that the defendant is expected or required to make an accounting of its net earnings for any period less than one year or that the additional compensation, whether an amount which is a percentage of the net earnings or the alternative amount of $2,500, is to be distributed ratably over the business year. And there is no provision for crediting the plaintiff with any amount until after the end of a business year. This construction of the language does not reach so unreasonable a result as to preclude its adoption. Under the written contract, so construed, no “credits” had “accumulated” to the plaintiff’s “account” before the termination of his employment by the defendant. See, for somewhat similar cases, Allcott v. Boston Steam Flour Mill Co. 9 Cush. 376; Thompson v. Saco Water Power Co. 114 Mass. 159. Since the terms of the written agreement are not ambiguous, the judge properly excluded evidence offered by the plaintiff of previous negotiations and contemporaneous discussions between the plaintiff and the president of the defendant corporation. Snider v. Deban, 249 Mass. 59, 61. Exceptions overruled.