Dunlap v. Montgomery

OPINION,

Mr. Justice Steebett:

One of the controlling facts necessarily established by the verdict is, that the article of agreement of February 26, 1875, between plaintiff’s testator and defendant below, remained in force on January 1, 1881. The question whether it was or was not then in force was fairly presented by the evidence, and, in accordance with the request contained in defendant’s first point, that question was submitted to the jury with specific instructions that plaintiff could not recover unless they found from “ the fair preponderance of the evidence that the article of agreement of February 26, 1875, was still in effect on January 1, 1881.” The verdict being for plaintiff, the question was thus definitely settled in her favor. Another fact settled in like manner by the verdict, is that the contract relation created by the agreement was terminated only by the death of plaintiff’s testator on April 25, 1881.

It follows from the facts thus established by the verdict that the rights of the parties respectively must be determined by the provisions of the agreement, and not by the general rules of law that would be applicable to the facts of the case if the parties had not adopted a rule of their own. Referring to the article, we find it was agreed that Montgomery should “ continue his services ” with Dunlap “ during the current year of 1875, and from year to year on the same terms and conditions ” as theretofore, “ viz.: ten per cent of the net profits, to be ascertained at the end of each year; ” provided, that if their relation as employer and employee terminated by the death of either, or by thirty days’ notice given by either to the other, then and in that contingency it was agreed that Montgomery’s “ rate of compensation for the expired time of the year should be at the pro rated sum of $2,000 per annum, which when páid will be in full and in lieu of the teii per cent.” The rule thus adopted by the parties as the measure of Montgomery’s compensation, is free from doubt or ambiguity. If the relation of employer and employee continued to the end of the year, his compensation was to be ten per cent of the net profits to be ascertained at the expiration of the year, etc.; but, if the relation was terminated during any year and before the expiration thereof, either by the death of either, or by the thirty days’ written notice, which either had the right to give to the other, then in lieu of the ten per cent net profits, which of course could not be ascertained until the expiration of the current year, it was agreed that his compensation, not for the number of days he had worked, but for the portion of the year that had then expired, should be at the rate of $2,000 per annum. It so happened, as the jury has found, that, the contract relation terminated by Montgomery’s death on April 25, 1881, at which time 116 days of that year had expired. According to the rule adopted by the parties for their own government, Montgomery’s compensation for that especial portion of the year was to be at the rate of. $2,000 per annum, or about $688. That sum with interest, less the amount paid on account, is what plaintiff below was entitled to recover. Estimated on that basis, the verdict is substantially correct.

It is unnecessary to consider other questions that have been brought to our notice. They have no bearing on the validity of the judgment.

There is no material error in either of the instructions complained of, and the judgment should not be disturbed.

Judgment affirmed.