Opinion
[No. 78, September Term, 1961.]
Decided December 5, 1961.
CONTRACTS — Of Employment — Suit For Commissions — Ample Evidence Of Written Contract, As Plaintiff Alleged, And He Could Not Now Assert Oral Agreement, And Recover Upon Quantum Meruit Basis — Contract Not Illusory — Commissions Upon Termination. In this suit against the plaintiff's former employer to recover commissions allegedly due the plaintiff, the evidence was held to be ample to sustain the finding by the trial court that the contract was based upon a "plan" in writing, as the plaintiff said it was in his answer to a demand for a bill of particulars, and being bound by the written contract upon which he based his suit, the plaintiff could not now assert an oral agreement and recover upon a quantum meruit basis. The Court also held that a further claim that the contract was illusory was not sustainable. Nor was the trial court clearly erroneous (Maryland Rule 886 a) in finding that the plaintiff had failed in his proof to show that commissions were due him, since under the contract a salesman whose employment is terminated is entitled to commissions on sales he booked only where "shipment and billing [were] made not later than 90 days past [the] actual date of termination". pp. 111-112
J.E.B.
Decided December 5, 1961.
Appeal from the Circuit Court for Baltimore County (TURNBULL, J.).
Action by James F. Norris against Ald New York, Inc., his former employer, to recover commissions allegedly due the plaintiff. From a judgment for the defendant, the plaintiff appeals.
Affirmed, with costs.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and SYBERT, JJ.
Robert P. Conrad and James L. Roche, III, with whom were Robert L. Sullivan, Jr., and Sklar Sullivan on the brief, for the appellant.
R. Taylor McLean, with whom were Proctor, Royston Mueller on the brief, for the appellee.
This appeal is devoid of merit. The plaintiff was employed by the defendant under a written agreement. He based his suit for commissions on "a certain basic plan." In his answer to a demand for a bill of particulars, he stated that the "plan" was in writing, and the documents containing it were in the possession of the defendant. He now seeks to assert an oral agreement and to recover upon a quantum meruit basis. The evidence was ample to sustain the findings that the contract was as the appellant said it was in his declaration and answer to the demand for particulars, and that appellant was discharged for cause. He was bound by the written contract upon which he based his suit. The claim that the contract was illusory is not sustainable. See Restatement, Contracts, § 79, Illustration 1, where it is stated:
"1. A promises B to act as B's agent for three years on certain terms, and B agrees that A may so act, but reserves the power to cancel the agreement at any time. B's agreement is insufficient consideration, since it involves nothing that can properly be called a promise. Otherwise, if B reserves the power to cancel on thirty days' notice."
The appellant's further contention that the settlement between the parties provided for upon termination of the contract amounted to a forfeiture, and, therefore, was unenforceable can afford him no relief. If we assume as contended by the appellant, without deciding, that these provisions did call for a forfeiture, the appellant, as a terminated salesman, was only entitled to commissions on sales booked by him in those cases where "shipment and billing [were] made not later than 90 days past actual date of termination," and the trial court found that, due to this provision, appellant had failed in his proof to show that commissions were due him, a finding that we cannot say was clearly erroneous. Maryland Rule 886 a.
Judgment affirmed, with costs.