Peniston v. John Y. Huber Co. , 196 Pa. 580 ( 1900 )

Opinion by

Mr. Justice Beown,

The contract between the parties to this contention was clearly, as held by the learned president judge of the court below, one of employment. Its first clause is as follows: “ Said company hereby employs said Peniston to be manager of its publishing department for the term of two years from this date, with reasonable and proper authority to conduct said department ; and said Peniston hereby accepts said employment.”

It is true that the appellee was to receive a proportion of the profits of the business, and, at the expiration of the contract, one third of the value of the stock, copyright and plates. He was not, however, to receive an interest in the latter, but to be paid a sum of money equal to one third of their value, to be ascertained in the manner stated in the agreement. He was an employee, engaged for a definite period at a compensation agreed upon by him and his employer, and was to be manager of its publishing department for the term of two years from July 16, 1890, “with reasonable and proper authority to conduct said department.” The error into which he seems to have fallen was as to his real relation to the appellant. He appears not to have understood, that, when he executed the agreement of July 16, 1890, he became, as stated, an employee for a fixed period, at a compensation agreed to by himself, that his right to receive his wages depended upon his faithful service, and that, for any misconduct on his part inconsistent with the relation he had assumed as servant to his master, the latter had an undoubted right, at any time, to put an end to the contract: Singer v. McCormick, 4 W. & S. 265. He was employed to be manager of a, department “ with reasonable and proper authority to conduct it,” but, in exercising authority in that department, he was to be subordinate to a higher one, that of his employer, the corporation that had reserved to itself the right to supervise all its departments and the conduct of those managing them. It gave to this appellee simply authority to reasonably and properly conduct and .manage his department, as its employee, at all times subordinate to it, his employer. The contract cannot be differently interpreted, and the court below was correct in so construing it.

Damages are claimed by the appellee for his alleged improper discharge by the appellant. This is his allegation, and notwithstanding the appellant’s shifting position, a careful review of the evidence has satisfied us that there was a discharge. The first question, then, that arises is, was the discharge proper ? Disputed facts connected with such a discharge, and alleged by the employer to have been reasonable cause for it, are for the jury; but whether it was proper, under undisputed or admitted conditions, relied upon as justifying it, is for the court: Matthews v. Park Brothers, 146 Pa. 384. There is no dispute as to the conduct of the appellee that led to his discharge. He admits that, when directed by the president of the company that had employed him to change his room from the second story of the building to the first, he declined, for the reason that he felt he had a partner’s interest in the business, instead of a position as a clerk, and subsequently refused to deliver or submit to the president, until he could consult his counsel, the contracts that had been made for the sale of the books, published by the company employing him. This was insubordination and misconduct fully justifying his discharge, and the learned trial judge should have so instructed the jury, instead of allowing them to determine whether he had been dismissed from service improperly and without cause. They should have been told that the order to occupy another room and the direction to submit or deliver the contracts to the president were reasonable and their disregard improper, justifying the discharge of the appellee. Even after the termination of the relations between the appellant and the appellee, they might have been restored, but for the persistent disposition of the latter to defy authority. When told that he could return to his duties, subject to the control of the company, he refused, insisting upon his own interpretation of the contract. His conduct, both before and after his discharge, showed a defiance of his employer’s authority that made continued employment impossible.

Having been properly dismissed from his employment, the only remaining question is, whether the appellee is entitled to recover anything. The contract provides that, during its continuance, settlements were to be made every three months, “commencing as of the first day of November, 1890, and one third of the accrued net profits, as shown by said settlements, shall then be paid over to said Peniston.” As he was discharged about the time the first settlement ought to have been made, in reversing this judgment we will order a new trial, that it may be determined, under evidence more satisfactory than has been produced, what profits, if any, had accrued to November 1,1890, to one third of which he is entitled. All other compensation under the contract he forfeited by his misconduct and lost when he was properly discharged.

The error called to our attention in the fifth assignment was inadvertently made and will be avoided on the retrial.

Judgment reversed and a venire facias de novo awarded.