Lieberman v. Weil

124 N.W. 262, 141 Wis. 635, 1910 Wisc. LEXIS 17

• Court: Wisconsin Supreme Court
• Decided: February 22, 1910
• Status: Published

Opinion

The following opinion was filed January 11, 1910:

BabNes, J.

The defendants contend that the provisions of the first paragraph of the contract are controlling as to the compensation which plaintiff should receive. If this view of the contract is correct, plaintiff failed to show that he was entitled to recover any damages whatever. Defendants further contend that they bad the right under the contract -to discharge the plaintiff at any time his services were not performed to their satisfaction; that they had reason tO' be and were dissatisfied with the services rendered, and had the unequivocal right to discharge, which they exercised in a proper manner, and therefore no recovery should be permitted.

Considering the first paragraph of the contract alone, the plaintiff would be entitled to receive a commission on his sales for his compensation. The third paragraph, however, •seems to plainly provide that the plaintiff should have a salary of $2,700 per year. There is no covenant that any part of this salary should be refunded in the event that the commission provided for in the first paragraph should be less than the •salary account provided for in the third. Neither is there any provision for a refund in the final paragraph of the contract, which designated how and when settlements between the parties should be made. This fact, coupled with the positive agreement to pay $2,700 per annum in salary, leads us to the •conclusion that, construing the instrument as a whole, the plaintiff was entitled to draw the salary provided in the agreement, and that the provisions of the first paragraph of the contract were inoperative so long as the commissions on sales did not exceed the salary provided for. Parol evidence of the negotiations between the parties which resulted in the written contract was offered and received without objection. If we concede the contract to be ambiguous and the parol evidence referred to competent, a consideration thereof and of the practical construction apparently placed upon the contract by the parties lead to the same conclusion.

It is conceded that by the terms of the contract the defendants might discharge the plaintiff if they were dissatisfied with him, and that it was immaterial whether the reasons for dissatisfaction existed in fact or in imagination. But the “dissatisfaction must not be capricious or mercenary, nor result from a dishonest design to be dissatisfied in any event. It must be real and in good faith.” Parr v. Northern E. Mfg. Co. 117 Wis. 278, 289, 93 N. W. 1099, 1103. Other cases to the same effect are Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Exhaust V. Co. v. C., M. & St. P. R. Co. 66 Wis. 218, 28 N. W. 343.

The jury found that the defendants did not in good faith •discharge the plaintiff because his services were unsatisfactory. There is a very considerable quantum of evidence in' .the case to support this finding, notwithstanding the fact that the defendants on the trial gave entirely satisfactory reasons for the discharge. The jury evidently believed that the reasons given on the trial were not the ones that actuated the defendants in making the discharge. It would serve no useful purpose to recapitulate the testimony which we conclude is sufficient to support the verdict. These views render it un■necessary to discuss other questions argued by the appellants.

By the Court. — 'Judgment affirmed..

A motion for a rehearing was denied February 22, 1910.