Opinion
6 Div. 868.
April 21, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
London, Yancey Brower and Martin, Thompson, Foster Turner, all of Birmingham, for appellant.
The contract, not being binding upon the plaintiff, is not binding upon the defendant. Jones v. Lanier, 198 Ala. 363, 73 So. 535; Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894; McIntyre v. Jackson Lbr. Co., 165 Ala. 268, 51 So. 767, 138 Am. St. Rep. 66; Christie v. Patton, 148 Ala. 324, 42 So. 614; Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; Elmore v. Parrish, 170 Ala. 499, 54 So. 203. Where there is no promise made by the plaintiff, the promise of defendant is only binding to the extent that plaintiff has rendered service for the defendant. Sorrentino Y. Bouchet (Sup.) 161 N.Y. S. 262; Owen Kelly v. Great Lakes Co., 203 Ill. App. 207. Any misconduct which is inconsistent with the relation of an employer and employee will justify the former in terminating the relation. Carpenter Steel Co. v. Norcross, (C.C.A.) 204 F. 537, Ann. Cas. 1916A, 1035; Darst v. Mathieson Alkali Wks. (C. C.) 81 F. 284; Singer v. McCormick, 4 Watts S. (Pa.) 265; Frederich v. Ralli, 11 La. Ann. 425; Darden v. Nolan, 4 La. Ann. 374; Beckman v. Garrett, 66 Ohio St. 136, 64 N.E. 62; Bilz v. Powell, 50 Colo. 482, 117 P. 344, 38 L.R.A. (N.S.) 847; In re Nagel (C.C.A.) 278 F. 109. If an employee attempts to induce coemployees to leave his employer's service and set up a rival business, it is such violation of his duty as warrants his immediate discharge. Ann. Cas. 1016A, 1033; Puritas Laundry v. Green, 15 Cal.App. 654, 115 P. 660; Hibbard v. Wood, 49 Pa. Super. 513; Union Ref. Co. v. Barton, 77 Ala. 154; Brown v. Dupuy (C.C.A.) 4 F.2d 367. Extent of sales made by plaintiff in the past was not competent as affording a guide for estimating future or prospective profits. Union Ref. Co. v. Barton, supra; Beck v. West, 87 Ala. 213, 6 So. 70; Id., 91 Ala. 312, 9 So. 199; Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Brigham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28; Higgins v. Mansfield, 62 Ala. 267; Culver v. Hill, 68 Ala. 66, 44 Am.Rep. 134; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52. Speculative profits are not recoverable when they are based on uncertain contingencies. Young v. Cureton, 87 Ala. 727, 6 So. 352; Deslandes v. Scales, 187 Ala. 25, 65 So. 393; Bolling v. Tate, 65 Ala. 417, 39 Am. Rep. 5; Millican v. Haynes, 212 Ala. 537, 103 So. 567.
Horace C. Wilkinson, of Birmingham, for appellee.
No objection can be taken or allowed to pleading which is not distinctly stated in the demurrer. Code 1923, § 9479; Deslandes v. Scales, 187 Ala. 25, 65 So. 393; Creighton v. Air Nitrates Corp., 208 Ala. 330, 94 So. 356; Stoudemire v. Davis, 208 Ala. 495, 94 So. 498. The mere planning by an employee, during his contract of employment, to engage, after the expiration thereof, in a competing business, does not justify his discharge. Myers v. Roger J. Sullivan Co., 166 Mich. 193, 131 N.W. 521, 34 L.R.A. (N.S.) 1217; Levy v. Jarrett (Tex.Civ.App.) 198 S.W. 333; Greenburg v. S.D. Childs Co., 147 Ill. App. 477. Mere acquiescence or silent consent, or simply permitting another to commit a wrong, does not charge one person with such other's wrong. Brannock v. Bouldin, 26 N.C. 61; Robinson v. Vaughton, 8 Car. P. 252; Fitzwater v. Fassett, 199 Pa. 442, 49 A. 310. It is no defense to employee's action for wrongful discharge that subsequent thereto he engaged in business for himself in competition with his late employer. Stone v. Vimont, 7 Mo. App. 277; Litchtenhein v. Fisher, 87 Hun, 397, 34 N.Y. S. 304; Wilkinson v. Black, 80 Ala. 329. It is a jury question as to whether or not the conduct of plaintiff, by himself or in association with others, was such as to warrnt his discharge. Carpenter Steel Co. v. Norcross (C.C.A.) 204 F. 537, Ann. Cas. 1916A, 1035; Schumaker v. Heinemann, 99 Wis. 251, 74 N.W. 785; Clouston v. Carry, A. C. (Eng.) 122; Casavant v. Sherman, 213 Mass. 23, 99 N.E. 475. Interrogatories propounded to the opposing party under the statute are evidence in the cause when offered by the party taking them. Code 1923, § 7768; Southern R. Co. v. Hayes, 183 Ala. 465, 62 So. 874. If a party fails to object to an interrogatory propounded to a witness by deposition, he waives the right to object to the competency of same for the first time on the trial of the case. Sparks v. J. S. Reeves Co., 165 Ala. 352, 51 So. 574; L. N. v. Hall, 91 Ala. 112, 8 So. 371, 24 Am. St. Rep. 863; Townsend v. Jeffries, 24 Ala. 329. A variance between pleading and proof cannot be raised for the first time by requesting the affirmative charge. Rules 34, 35, 4 Code 1923, pp. 906, 907; Aiken v. McMillan, 213 Ala. 494, 106 So. 150.
It is undoubtedly the law that a unilateral contract, that is, one which is binding on one party and not the other, will not authorize an action for the breach of same by the party not bound against the one that is. As we view the complaint in the instant case, and the contract set out, it shows a mutuality as to consideration — that is an employment by the defendant for the year for a compensation and an obligation on the part of the plaintiff to furnish his car and to repay the advances of his traveling expenses out of his commissions. And while there is no express obligation on the part of the plaintiff to continue in the service of the defendant for the year, there is an implied agreement to do so which would render the obligation reciprocal and mutual. "What is implied in an express contract is as much a part of it as what is expressed." Grossman v. Schenker, 206 N.Y. 466, 100 N.E. 39; 20 C. J. 1240, 6 R. C. L. 689.
The contracts dealt with in Jones v. Lanier, 198 Ala. 363, 73 So. 535, Moore v. Kennedy, 212 Ala. 193, 101 So. 894, and other cases cited by appellant's counsel, are unlike the contract now under consideration. Moreover, the demurrers have been carefully examined, and the point contended for and above treated has not been specifically presented by any ground of demurrer.
"No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer." Code 1923, § 9479.
"The rule is well settled that if a servant, without the consent of the master, engages in another business which tends to injure or endanger that of the master or by reason of which he is unable to give the time and attention due the business of his employer, he may lawfully be discharged before the expiration of his term of service. * * *
"The court in Dieringer v. Meyer, 42 Wis. 311, 24 Am. Rep. 415, stated the rule and the reason therefor as follows: 'It is well settled that if a servant, without the consent of his master, engaged in any employment or business for himself or another, which may tend to injure his master's trade or business, he may lawfully be discharged before the expiration of the agreed term of service. This is so because it is the duty of the servant, not only to give his time and attention to his master's business, but, by all lawful means at his command, to protect and advance his master's interests.'
"The courts are agreed that where the business undertaken by the servant is of a competitive nature, which tends to bring his personal interest in conflict with his duty to his master, with resultant injury to the master's business, he may lawfully be discharged before the expiration of his term of service. * * *
" 'Manifestly, when a servant becomes engaged in a business which necessarily renders him a competitor and rival of his master, no matter how much or how little time and attention he devotes to it, he has an interest against his duty. It would be monstrous to hold that the master is bound to retain the servant in his employment after he has thus voluntarily put himself in an attitude hostile to his master's interests.' And the fact that he has given his entire time to the service of the master conducting his separate business through agents was held to be immaterial, the court further saying: 'The fact may be, in certain cases, that, notwithstanding the servant has engaged in a rival business, still he has given his whole time and attention to the business of his master. An attempt was made to show that this is such a case. But the existence of that fact will not take a case out of the rule above stated, for the reason that the servant would have an interest against his duty.'
"The reasons on which the rule is based were stated in Tozer v. Hutchison, 12 N. Bruns. 548, as follows: 'A person who enters into the service of another undertakes to bestow the same care, attention and diligence as if the business were his own. This the plaintiff could not do while he had an interest as partner in a business of the same description as that in which his employer was engaged. There would necessarily be a conflict between his duty and his interest. It was inconsistent with his duty as clerk to defendant and destructive of the confidence which must be reposed in a person employed as the plaintiff was, by enabling him to make use in his own business of the knowledge and information which he obtained as the confidential clerk and agent of the defendant.'
"In Puritas Laundry Co. v. Green, 15 Cal.App. 654, 115 P. 660, the evidence showed that while in the employ of a laundry company the servant assisted in organizing a rival company and was actively engaged in an effort to induce other employees to leave their present service and take service with the new company bringing what business they could with them. This the court held was a sufficient violation of his contract to justify his discharge. And so in Hibbard v. Wood, 49 Pa. Super. 513, wherein it appeared that a dairy foreman was engaged in the business of selling milk in the same community as his employer and solicited his employer's customers it was held that he might properly be discharged.
"However, the mere planning to engage in another business at the termination of his service, even though it is to establish a concern in competition with that of his master, is not such a breach of duty as to justify a servant's discharge. Myers v. Rogers J. Sullivan Co., 166 Mich. 193, 131 N.W. 521, 34 L.R.A. (N.S.) 1217, wherein it was said: 'We think that the mere planning by an employee during his contract of employment to engage after the expiration thereof in a competing business does not justify his discharge as a matter of law. * * * The complaint made by defendant is that by connecting himself with this corporation plaintiff put himself in an attitude of hostility towards defendant, and that of itself was sufficient cause for discharge. The facts are that the concern had not as yet entered into business, and did not propose to until the expiration of plaintiff's term of hiring. It amounted on the part of plaintiff to a mere planning for employment. One is entitled to seek other employment before he is on the street. The contrary would be a monstrous doctrine.' In Nichol v. Martyn, 2 Esp. (Eng.) 732, the court said on this subject: 'A servant while engaged in the service of his master, has no right to do any act which may injure his trade, or undermine his business; but every one has a right, if he can, to better his situation in the world; and if he does it by means not contrary to law, though the master may be eventually injured, it is damnum abs. injuria.' " Ann. Cas. 1916A, page 1032, and cases cited in note.
So, too, does an agent owe fidelity to his principal and is under a duty not to entice other employees to leave the employment pending their contract, but we know of no rule of law or conduct forbidding employees from negotiating between themselves looking to their future betterment by engaging in other pursuits after the expiration of their existing contract of employment.
Defendant's special plea 4, if not otherwise bad, does not charge the plaintiff with a knowledge of or consent to the conduct of other employees. Nor does it show, except by way of conclusion, that their conduct was prejudicial. It should show what they said or did prejudicial to defendant's business, as there is no averment that they solicited or persuaded the customers to withhold their patronage until their new business was established.
True, plea 5 avers that the conduct of the other employees was known to the plaintiff, but it was demurrable for failing to show how or in what manner their conduct was legally prejudicial to the defendant.
Pleas 6 and 7, if not otherwise bad, seek to set up the conduct of the plaintiff and his associates after they had been discharged and at a time when they did not owe the defendant the duty to not do the things charged.
Plea 8, if not otherwise bad, fails to aver that plaintiff attempted to induce other employees to abandon the service of the defendant pending their period of employment. From aught appearing, plaintiff merely attempted to induce them to join him in business after the expiration of their term of employment.
Plea 9, if not otherwise bad, fails to aver that plaintiff organized a competing corporation to engage in business during his term of employment.
"In the case of Beck v. West Co. [ 87 Ala. 2:13, 6 So. 70], the Supreme Court through Stone, C. J., says a traveling salesman cannot recover, in an action against his employer for a breach of the contract, any sum on estimated profits on sales to be made in the future which had not already been contracted to be made at the time of the breach of the contract, for, 'as to what sales he could or would have made, all fall in the category of the speculative, are contingent, and do not tend to show a right of recovery.' Beck v. West Co., 87 Ala. 213, 6 So. 70. In Railway Co. v. Coleman, 153 Ala. 266, 44 So. 837, the court says: 'The damages claimed may be the ordinary and natural, and even necessary result of the breach; and yet, if in their nature uncertain, they must be rejected. * * * The profits which were merely possible or probable of accretion from the business in which the defendant was engaged were in large measure speculative, subject to contingencies, and incapable of being proved with the degree of certainty which the law requires to constitute recoverable damages.' " St. Louis R. R. v. Lilly, 1 Ala. App. 323, 55 So. 937.
It would therefore seem that the trial court erred in not sustaining the defendant's objection to plaintiff's interrogatory, under the statute, calling for a statement of all sales made by the defendant for the months of November and December in that territory formerly traveled by the plaintiff. On the other hand, should we concede, but which we do not decide, that the sales made through the plaintiff's successor could be taken as some evidence that plaintiff would have made similar sales, the question would still be objectionable, as it is not confined to sales made through the solicitation of said salesmen, but is broad enough to cover all sales made by the defendant, whether through the solicitation or influence of the salesman or not. We cannot concur in the insistence of appellee's counsel that the contract is broad enough to cover all sales made in plaintiff's territory whether through his efforts or solicitation or the solicitation of another salesman or directly by the defendant. We think the contract means that the plaintiff was to receive a commission on all orders solicited by him and accepted by the defendant, whether sent in by him in writing, by telephone or in person and does not apply to orders that may be sent in direct by purchasers which were not solicited or obtained by the plaintiff. This also seems to be the construction of the contract of plaintiff's counsel in framing the complaint, as each count avers "the defendant was to pay the plaintiff four per cent. commission on all business received from customers solicited by the plaintiff in the territory assigned to him."
Nor can we hold that the objection to the interrogatory is not available to the defendant because it proceeded to answer same before getting a ruling on the objection. The objection was made before the interrogatory was answered, and we cannot say that the defendant waived the objection by answering the interrogatory instead of waiting until the case was ready for trial or until the trial court ruled on the objection and thus subjecting itself to be penalized for a failure to answer in case the trial court overruled the objection.
The first count, as amended, avers that the parties entered into a written contract on the 12th of January, and the proof shows that while the agreement was reached in January, it was not put in writing until the following October. This was a variance and entitled the defendant to the general charge as to count 1 if the variance was properly brought to the attention of the trial court, but which was not done. Circuit court rule 34.
For the error pointed out the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.