Mason, J.,
delivered the opinion of this court.
This is an action of asswmpsit, the declaration in which contains a count upon a special agreement, a count for work and labor and the common money counts.
At the trial the plaintiff proved, that in virtue of a written contract, which was afterwards produced, he had been in the employment of the defendants from the 1st of January 1850 to the 1st of June 1850, a period of five months, and during that time had sold for them goods to the amount of $33,266.50, which had been duly delivered to the purchasers. He also proved that a written notice from the defendants, dispensing with his services, had been given to him thirty days prior to 1st of June, and that he left their employment in conformity [141]*141with such notice. The plaintiff then gave in evidence the written contract between himself and defendants, as follows:
“Memorandum of understanding between Long & Byrne and George T. Jenkins for the year eighteen hundred and fifty (1850.) The first named party agree to pay Mr. Jenkins a salary of one thousand dollars if he sells for them to such parties as they shall approve, forty thousand during the year, and for all sales over and above that amount, (2 p. c.) two per cent, additional, the excess over the one thousand dollars to be paid at the end of the year, when the amount of sales shall be ascertained, and the thousand dollars to be drawn in monthly instalments of fifty dollars per month, commencing at end of January, three hundred and fifty dollars being already advanced on next year’s salary. Sales made by Mr. Jenkins personally, and orders from his friends and induced by his influence, (the packing of whose goods are to be superintended by him,) to be considered as constituting the amount of his sales, after deducting all bad and doubtful debts at the end of the year, which, under no circumstances, can the two per cent, commission be paid upon. It being further understood, that George T. Jenkins binds himself, under a penalty of five hundred dollars, to continue in the service of Long <fc Byrne till the 1st of January 1851, if they so desire it, and that they have the right to dispense with his services at any time previously by giving him a month’s notice to that effect, to which agreement both parties pledged themselves, this 14th day of November 1849.
(Signed,) Long & Bmkne, by E. B. Long,
Geo. T. Jenkins.”
The plaintiff then offered to prove by several witnesses his competency and character as a business man, and the value of his services in connection with the dry goods business, (being the business in which Long & Byrne were engaged in the year 1850,) and particularly the value of his services to the defendants from the 1st of January 1850 to the 1st of June 1850. And offered further to prove his services worth for the year 1850 from $2500 to f3000. But the court refused to allow the testimony to go to the jury and ruled the same incompetent, which ruling forms the matter of the plaintiff’s first exception.
[142]*142The defendants then proved that the plaintiff had received from them $650.50; and thereupon the case was closed.
The plaintiff then asked the court to instruct the jury, “ that the true and legal construction of the contract offered in evidence is, that the plaintiff is entitled to receive for his services a pro rata compensation, to be estimated upon the amount of goods sold by him while in the employment of tire defendants.” But the court refused so to do and the plaintff excepted.
The defendants then prayed the court, &c., u that if the jury find from the evidence that the defendants contracted with plaintiff, as set out in the contract, and that plaintiff entered into the service of the defendants on the 1st of January and remained in their service till 1st of June, (five months,) and then left their service in consequence of notice from defendants, in pursuance of said contract, the plaintiff is only entitled to recover in this action at the rate of $1000 yer annum for the time he was so in defendants’ service, and that from such amount must be deducted the amount of defendants’ bill filed in this case and admitted by plaintiff to be correct.” This prayer was granted and the plaintiff also excepted.
This case depends upon the proper construction of the written contract between the plaintiff and defendants. It is not a case where evidence in a quantum meruit would be admissible as if the contract had been violated or abandoned by the defendants, or where it had been terminated even by the consent of both parties after it was only partly performed. Such were the cases of Watkins vs. Hodges, 6 Har. & Johns., 38; Howard, vs. Rail Road Co., 1 Gill, 311; Rodemer vs. Hazlehurst & Co., 9 Gill, 288; Bull vs. Schuberth, 2 Md. Rep., 38; Balt. & O. R. R. Co. vs. Resley, 7 Md. Rep., 297.
The defendants did not violate the terms of the agreement in dismissing the plaintiff, but in doing so they acted in strict conformity with them. Notwithstanding this dismissal of the plaintiff, it was nevertheless as much a perfectly executed and an entire contract between both parties as if it had continued for the whole year and as if the plaintiff had sold $40,000 worth of goods, and it was, therefore, as much the subject of [143]*143a special action. Evidence under a quantum, meruit is only resorted to where the special contract, from its having been either violated or rescinded, is not sufficient to meet the case. But here such is not the fact. The construction which we place upon this contract makes it ascertain, by force of its own terms, the precise amount of compensation which is due the plaintiff, and therefore there is no necessity to resort to evidence out side of the contract to ascertain, upon a quantum meruit, what that compensation should be or what the services were worth.
The question involved in the first exception is not one of pleading but one of evidence. There is no doubt that where the contract has been fully executed and nothing remains to be done but the payment of the money, the amount due can be recovered in indebitatus assumpsit, and it is not necessary in such case to declare upon or set out the special agreement. But where the contract remains in full force, as in this case, it must constitute, by virtue of its own terms, the evidence of the agreement itself, even where the plaintiff relies alone upon the common money counts, and no other evidence will be admissible.
Surely the defendants were entitled to whatever advantage they may derive from the provision in the contract, which authorises them to terminate it by dismissing the plaintiff after thirty days’ notice. But if by doing so, the defendants are to be treated as having so far abandoned the contract as to permit the plaintiff to resort to evidence in indebitatus assumpsit instead of the special contract, what better off are they than if no such provision was embraced in the agreement? In other words, the effect upon the defendants would be precisely the same, whether, in dismissing the plaintiff, they violated the contract, or whether, in doing so, they pursued its strict letter and spirit.
We are, therefore, of the opinion, that the evidence embraced in the first bill of exceptions was properly rejected. It
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Mason, J.,
delivered the opinion of this court.
This is an action of asswmpsit, the declaration in which contains a count upon a special agreement, a count for work and labor and the common money counts.
At the trial the plaintiff proved, that in virtue of a written contract, which was afterwards produced, he had been in the employment of the defendants from the 1st of January 1850 to the 1st of June 1850, a period of five months, and during that time had sold for them goods to the amount of $33,266.50, which had been duly delivered to the purchasers. He also proved that a written notice from the defendants, dispensing with his services, had been given to him thirty days prior to 1st of June, and that he left their employment in conformity [141]*141with such notice. The plaintiff then gave in evidence the written contract between himself and defendants, as follows:
“Memorandum of understanding between Long & Byrne and George T. Jenkins for the year eighteen hundred and fifty (1850.) The first named party agree to pay Mr. Jenkins a salary of one thousand dollars if he sells for them to such parties as they shall approve, forty thousand during the year, and for all sales over and above that amount, (2 p. c.) two per cent, additional, the excess over the one thousand dollars to be paid at the end of the year, when the amount of sales shall be ascertained, and the thousand dollars to be drawn in monthly instalments of fifty dollars per month, commencing at end of January, three hundred and fifty dollars being already advanced on next year’s salary. Sales made by Mr. Jenkins personally, and orders from his friends and induced by his influence, (the packing of whose goods are to be superintended by him,) to be considered as constituting the amount of his sales, after deducting all bad and doubtful debts at the end of the year, which, under no circumstances, can the two per cent, commission be paid upon. It being further understood, that George T. Jenkins binds himself, under a penalty of five hundred dollars, to continue in the service of Long <fc Byrne till the 1st of January 1851, if they so desire it, and that they have the right to dispense with his services at any time previously by giving him a month’s notice to that effect, to which agreement both parties pledged themselves, this 14th day of November 1849.
(Signed,) Long & Bmkne, by E. B. Long,
Geo. T. Jenkins.”
The plaintiff then offered to prove by several witnesses his competency and character as a business man, and the value of his services in connection with the dry goods business, (being the business in which Long & Byrne were engaged in the year 1850,) and particularly the value of his services to the defendants from the 1st of January 1850 to the 1st of June 1850. And offered further to prove his services worth for the year 1850 from $2500 to f3000. But the court refused to allow the testimony to go to the jury and ruled the same incompetent, which ruling forms the matter of the plaintiff’s first exception.
[142]*142The defendants then proved that the plaintiff had received from them $650.50; and thereupon the case was closed.
The plaintiff then asked the court to instruct the jury, “ that the true and legal construction of the contract offered in evidence is, that the plaintiff is entitled to receive for his services a pro rata compensation, to be estimated upon the amount of goods sold by him while in the employment of tire defendants.” But the court refused so to do and the plaintff excepted.
The defendants then prayed the court, &c., u that if the jury find from the evidence that the defendants contracted with plaintiff, as set out in the contract, and that plaintiff entered into the service of the defendants on the 1st of January and remained in their service till 1st of June, (five months,) and then left their service in consequence of notice from defendants, in pursuance of said contract, the plaintiff is only entitled to recover in this action at the rate of $1000 yer annum for the time he was so in defendants’ service, and that from such amount must be deducted the amount of defendants’ bill filed in this case and admitted by plaintiff to be correct.” This prayer was granted and the plaintiff also excepted.
This case depends upon the proper construction of the written contract between the plaintiff and defendants. It is not a case where evidence in a quantum meruit would be admissible as if the contract had been violated or abandoned by the defendants, or where it had been terminated even by the consent of both parties after it was only partly performed. Such were the cases of Watkins vs. Hodges, 6 Har. & Johns., 38; Howard, vs. Rail Road Co., 1 Gill, 311; Rodemer vs. Hazlehurst & Co., 9 Gill, 288; Bull vs. Schuberth, 2 Md. Rep., 38; Balt. & O. R. R. Co. vs. Resley, 7 Md. Rep., 297.
The defendants did not violate the terms of the agreement in dismissing the plaintiff, but in doing so they acted in strict conformity with them. Notwithstanding this dismissal of the plaintiff, it was nevertheless as much a perfectly executed and an entire contract between both parties as if it had continued for the whole year and as if the plaintiff had sold $40,000 worth of goods, and it was, therefore, as much the subject of [143]*143a special action. Evidence under a quantum, meruit is only resorted to where the special contract, from its having been either violated or rescinded, is not sufficient to meet the case. But here such is not the fact. The construction which we place upon this contract makes it ascertain, by force of its own terms, the precise amount of compensation which is due the plaintiff, and therefore there is no necessity to resort to evidence out side of the contract to ascertain, upon a quantum meruit, what that compensation should be or what the services were worth.
The question involved in the first exception is not one of pleading but one of evidence. There is no doubt that where the contract has been fully executed and nothing remains to be done but the payment of the money, the amount due can be recovered in indebitatus assumpsit, and it is not necessary in such case to declare upon or set out the special agreement. But where the contract remains in full force, as in this case, it must constitute, by virtue of its own terms, the evidence of the agreement itself, even where the plaintiff relies alone upon the common money counts, and no other evidence will be admissible.
Surely the defendants were entitled to whatever advantage they may derive from the provision in the contract, which authorises them to terminate it by dismissing the plaintiff after thirty days’ notice. But if by doing so, the defendants are to be treated as having so far abandoned the contract as to permit the plaintiff to resort to evidence in indebitatus assumpsit instead of the special contract, what better off are they than if no such provision was embraced in the agreement? In other words, the effect upon the defendants would be precisely the same, whether, in dismissing the plaintiff, they violated the contract, or whether, in doing so, they pursued its strict letter and spirit.
We are, therefore, of the opinion, that the evidence embraced in the first bill of exceptions was properly rejected. It sought to substitute an implied agreement in the place of the positive contract between the parties, which, as we shall presently show,- though executed, was still in full force and virtue, unrescinded or unviolated by either party.
[144]*144The equitable construction of this contract is evidently this: If the defendants should think proper, before the end of the year, to terminate the contract and dismiss the plaintiff, the latter would be entitled to compensation for the fraction of the year in proportion to the amount he was to have received for the whole year, and this would include as rvell the contingent compensation of two per cent, as the proportionate part of the $1000; provided, however, that the sales made for the fraction of the year had been at the rate of $40,000 per annum. Thus, to entitle the plaintiff to recover for the five months he was in the defendants’ service, it must appear that he sold goods in that time to the amount, at least, of $16,666.66, which sum bears the same proportion to $40,000 that five months bear to one year. This having been shown, he became at once entitled to his share of the $1000 in the proportion also of five to twelve, which is $416.66-|. By the admissions in the record it appears, that the plaintiff, in the five months, sold goods to the amount of $33,266.50, which was an excess of $16,599.83 over the sum necessary to entitle him to claim compensation. Upon this excess he was entitled to two per cent, commissions, which, provided there were no bad debts, would amount to $331.99, which, added to the proportion due on his fixed salary, would make the plaintiff’s claim, on the 1st of June 1850, the túne he was dismissed, $748.65§. Deducting the account of the defendants, which is admitted to be $650.50, the balance due the plaintiff would be $98,15|-, with interest. As before said, this sum would be subject to be reduced upon proof that any portion of the sales were bad debts, upon which, by tire terms of the contract, he was to have no commissions.
From what we have said, it follows, that the construction of the contract contended for by the appellee, namely, that there could be no recovery in this case, either of any fraction of the fixed salary or the contingent per centum until after an actual sale of $40,000 worth of goods had been made, is wholly untenable. The opposite suggestion, that the appellant would be entitled to 2-t per cent, on the sales actually made while they continrred below $40,000, which is at the rate of $1000 upon $40,000 is equally unsupported by the terms of the agreement. The [145]*145effect of the latter construction would be to allow the plaintiff a greater rate of compensation for the five months than he would have been entitled to if he had continued in service till the end of the year, and had sold at the same ratio; whereas it is manifest from the terms of the agreement, that the contract, although made for a whole year, nevertheless contemplated a case of a segregation or division of it into fractions of a year, and that the compensation to be allowed for such fraction would be determined by the standard adopted for the Avhole year.
It is proper in construing contracts, not to confine ourselves to the particular state of case that lias arisen under it, but it is legitimate for us to lest, the correctness of our impressions upon the particular state of lads that maybe presented by the record, by supposing new and different aspects of the case, in order to ascertain whether the rule of interpretation adopted makes every phase Avhich the case might assume harmonise Avith each other.
That the view AVe have taken of this contract is the correct one, appears manifest to our minds from the folloAving illustrations: Suppose the plaintiff had sold goods, say at the rate of $200,000 for the year, the commissions on the excess over $40,000, added to his fixed salary, would amount to $4200. To avoid the payment of these commissions it Avould he only necessary for the defendants to give notice, on the 30th of November, for the purpose of dismissing the plaintiff, and thus on the 30th of December, one day only before bis claim for the full year’s compensation would be consummated, he would find himself bereft of the fruits of Ms labors, (the commissions,) for the previous 364 days of the year, and that too Avithout any default or misconduct on his part. This might be inevitably one of the results of the construction contended for by the appellee.
Again, suppose the defendants should think propel1, in two months, to dismiss the plaintiff, and that in that time he had sold $40,000 worth of goods, if the construction contended for by him be correct, he would bo entitled to $1000, whereas by tire rule we have adopted he Avould be entitled to ouJy [146]*146$833,331,-. If it were otherwise and our rule of construction were not adopted the contract would be without mutuality, and would be susceptible of great injustice.
The contract further provides, that “the thousand dollars to be drawn in monthly instalments of fifty dollars per month.” This provision of course rests upon die assumption, that the sales were to be at least at the rate of $40,000 per annum; and it furnishes another illustration, that notwithstanding the contract might be terminated before the end of the year, still it was, for the fraction of the year in which it might remain in force, to be regarded as an entire, executed contract.
The construction placed upon this contract, by the court below, being in our judgment erroneous, we must reverse the judgment and remand the cause, in order that the jury, upon a subsequent trial, may be instructed in accordance with the views herein expressed.
Judgment reversed and procedendo awarded.
Eccleston, J.,
delivered the following separate opinion:
By the terms of the agreement die clerk was to receive as a salary $1000, if he sold, to such persons as the defendants should approve, $40,000 worth of goods during the year, and two per cent, for all sales above that amount. At the end o^ five months the clerk was discharged, up to which tíme he had sold $33,266.50, from which no abatement is claimed on account of sales to improper parties. The sales being made within the year, and not exceeding $40,000, according to my construction of the contract, and in view of the circumstances disclosed by the record, I drink the clerk had a right to claim 2-|- per cent, upon $33,266.50, because a salary of $1000 for selling goods amounting to $40,000, is at the rate of 2|- per cent, on the latter sum. Of course the defendants should be credited with the payments made by them.
I concur with the majority of the court in reversing the judgment, but not in their construction of the contract.