Opinion
January 12, 1951.
March 19, 1951.
Contracts — Employment — Compensations — Term.
In an action of assumpsit, it was Held that there was evidence to sustain findings of the trier of fact that defendant employed plaintiff at a stated salary, with a specified percentage of the net profits, for a definite term, and discharged him without justifiable cause in breach of the contract.
Before DREW, C. J., STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 251, Jan. T., 1950, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1947, No. 4225, in case of Leo Lavin v. George Goldwater, trading as Safety Laundry. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion by FLOOD, J., of the court below as follows:
Plaintiff has sued defendant in assumpsit for breach of a contract under which he alleged he was employed to manage defendant's dry cleaning business for one year from the 15th of September, 1947, at a salary of $75. per week, plus twenty per cent of the net profits. He further alleges that on December 13, 1947, defendant terminated the contract without notice and seeks an accounting. The defendant admits the discharge but avers that the contract was for an indeterminate period and that the discharge was for a good cause.
The case was tried before FLOOD, J., without a jury.
Plaintiff testified that he was introduced to defendant by one Kahn and that the parties orally agreed that the plaintiff should leave the position which he then held, where he was receiving $125. a week, and come to Philadelphia and accept a position with defendant as manager of a dry cleaning business which defendant was about to inaugurate in connection with his existing laundry business; and that the plaintiff's salary should be $75.00 per week, plus 20% of the net profits for one year. He testified further that he entered upon this business and performed properly until December 13, 1947, when he was discharged without notice.
The defendant stated that plaintiff asked for $75.00 per week which was agreed to. He then asked for 20% of the net profits, if he could show defendant how to make 55 or 60% net profit, which defendant also agreed to. Defendant stated that the contract was for no definite term. He further testified that plaintiff's performance was defective in several respects: that garments were sent out still spotted after they were supposedly cleaned, that certain fur garments were destroyed in the cleaning process, that deliveries were late and that a great deal of cleaning solvent was wasted by the plaintiff.
The Court finds for the plaintiff. Both parties agreed as to the weekly salary to be paid plaintiff and the fact that he was to get 20% of the weekly profits. Plaintiff stated that this was unconditional whereas defendant said the 20% was payable only if the business returned 55-60% profit to him. Two things make me disbelieve defendant in this matter. In the first place, he stated nothing about this in his original answer. He amended this answer at the trial, but in his answer, before amendment, he said nothing about any qualification of plaintiff's right to 20% of the profits.
Defendant's qualification about the condition of payment of the 20% is vague. If he had said directly that plaintiff was to get 20% of the profits only if defendant made 55%, it would be a good deal easier to believe than the statement which he did make which was that the parties talked about what profit would be made on the dry cleaning business and plaintiff said that he could show him how to make 55 or 60% and defendant "agreed to pay him 20% net of the 55 or 60% net profit that he was going to show us how to make." It seems to me very doubtful that a businessman such as defendant would have entered into such a vaguely expressed contract as that. Moreover Mr. Kahn who was called by the plaintiff as his witness testified somewhat differently. He testified that he asked defendant whether 20% would be too much to pay a man who made 55% profit for him and that the defendant agreed to give him 20% of the annual profits. Under Mr. Kahn's testimony the statement with regard to the 55% profit looks like a representation rather than a condition. On the whole, I cannot accept defendant's story. I conclude therefore that the contract was that plaintiff was to get $75. plus 20% of the profits.
If this was the contract it seems altogether likely that the contract was for a definite term. Twenty per cent of the profits has very little meaning if a contract can be terminated unilaterally at any time. There would obviously be no profit at all at the beginning of the contract and profits would likely grow as time went on. The clause would have no meaning and no value to the plaintiff if and unless some definite time were fixed. This being so, and since defendant's credibility is already shaken with the Trial Judge because of what has been said above, I find further that the contract was for a period of one year.
If the contract was for a definite period defendant had no right to discharge the plaintiff except for cause. I do not find such cause in the testimony. Defendant testified that plaintiff let goods go out that were spotted, and he lost business as a result. However, there is no doubt of the fact that the business was steadily increasing during the time that the plaintiff was there. The same point is significant with regard to the testimony as to late deliveries. There is also some testimony to the effect that certain fur garments were spoiled because of improper cleaning. Admittedly they were not spoiled by the plaintiff's own work and the sole question was whether or not they were spoiled by other employees of the defendant whom plaintiff had not properly trained. The evidence does not convince the trier of the facts that these furs were spoiled by plaintiff's default, negligence or lack of skill.
Finally what appears to be the most serious complaint is that the plaintiff wasted a great deal of cleaning solvent. Here again the balance of credibility is with plaintiff, who denied the waste and testified fully as to the operation.
Reporter's Note: The formal findings of fact and order to account are omitted.
Defendant appealed.
George T. Steeley, for appellant.
Maurice Stern, with him Mayer, Magaziner Brunswick, for appellee.
Judgment affirmed on the opinion of Judge FLOOD.