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CUMMINGS v. KELLING NUT COMPANY (11/13/51)

November 13, 1951

CUMMINGS
v.
KELLING NUT COMPANY, APPELLANT



Appeal, No. 141, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1948, No. 1346, in case of John A. Cummings v. The Kelling Nut Company. Judgment reversed.

COUNSEL

William H. Eckert, with him William K. Unverzagt and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellant.

William J. Kenney, with him Harton S. Semple, and Rose, Eichenauer & Rose, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 368 Pa. Page 449]

OPINION BY MR. JUSTICE CHIDSEY

The plaintiff, John A. Cummings, instituted this action in assumpsit against The Kelling Nut Company, defendant, for remuneration allegedly due him under an

[ 368 Pa. Page 450]

    oral contract of employment. A jury rendered a verdict for the plaintiff in the sum of $3,500, and the court below, refusing defendant's motion for judgment non obstante veredicto, entered judgment on the verdict, from which this appeal is taken.

In March of 1934 plaintiff was employed orally by the defendant as a salesman for its product which consisted of processed assorted nuts, vended from electrical display cases which were placed with the retailer. He was to receive weekly commissions on rentals charged for the cases and on the gross sales of all nuts. His traveling expenses were his own obligation. Plaintiff was a graduate pharmacist who was engaged in selling a line of chocolates in the same territory assigned to him by the defendant, namely, western Pennsylvania and northern West Virginia. No period of employment was specified and he was permitted to continue his selling line of chocolates while in defendant's employ. After continuing in this employment for nine years, in March of 1943 he was discharged for reasons not related to the performance of his duties. The defendant by written notice discontinued the services of all of its salesmen as of March 29, 1943 with salary payable until April 10, 1943. This notice received by plaintiff, in substance and effect, gave as a reason for the company's action, the decrease in its manufacture and output occasioned by wartime restrictions imposed by the Office of Price Administration.

Plaintiff admits being fully paid for his services up to the date of his discharge and his suit is for commissions which he would have earned if he had not been discharged. He claims that his earnings in the first years of his employment were relatively small in comparison with his expenditures of time and money and that it was the intention of the parties that the employment continue for such a reasonable time as would enable

[ 368 Pa. Page 451]

    plaintiff to be fairly compensated for the services and money he had expended in the furtherance of defendant's business. Kelling, the president of the defendant company, testified that he told plaintiff that the latter would be free to leave defendant at any time that he chose and that defendant could terminate his services at any time it chose and that no specific time was stated as to how long plaintiff should be employed. We are obliged, however, because of the verdict ...


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