Appeal, No. 193, Jan. T., 1956, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1952, No. 1667, in case of Charles A. Maloney v. Madrid Motor Corporation. Judgment affirmed.
John V. Lovitt, with him George E. Beechwood and Beechwood & Lovitt, for appellant.
Owen B. Rhoads, with him Arthur E. Newbold, III, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This action in assumpsit was instituted by the plaintiff-appellant to recover a sum which he alleged defendant agreed, but failed to pay him as commissions under a contract of employment. The case was tried before a jury which was unable to agree on a verdict and was therefore discharged. The court granted defendant's motion for judgment upon the whole record and entered judgment accordingly under the provisions
of the Act of April 20, 1911, P.L. 70, 12 PS § 684. Plaintiff appeals therefrom. In reviewing the record we are required to consider the facts and reasonable inferences therefrom in a light most favorable to the plaintiff: Staller et al. v. Philadelphia Rapid Transit Company, 339 Pa. 100, 14 A.2d 289; Shapiro v. Philadelphia Electric Company, 342 Pa. 416, 21 A.2d 26; Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174.
Defendant, Madrid Motors Corporation, is engaged in the business of renting motor vehicles. On September 15, 1944, plaintiff and defendant entered into a written contract whereby plaintiff was employed by defendant as manager of its Milestone Division at an annual salary of $10,400 and, as additional compensation, a 2% commission on the gross revenue from the rentals. The contract provided that it was to run for five years, and thereafter would be automatically renewed for one year periods until either party gave ninety days' written notice of intention to terminate. In June of 1949, four months before the expiration of the initial five year term, defendant through its president, delivered to plaintiff the following letter: "... In accordance with the agreement which we made several years ago, we do not wish to continue this agreement, in the future, when it expires next September. As you probably know, we have done considerably better under our arrangements with you than we agreed to in the agreement and, of course, would like the privilege of doing that again. However, I do think that we should try to arrive at your compensation a little differently than provided for in this agreement, and I think you will agree with us in that respect. This is merely a notice as called for under the agreement, but we do not wish to renew it ...".
Subsequent to the expiration of the contract in September of 1949, until plaintiff left defendant's employ
in January, 1952, plaintiff continued to receive salary checks as under the contract. He also received monthly commission checks through January, 1950, after which he received no additional compensation until December, 1950, when he received a check for $5,000. This check had noted on its voucher "Additional Earnings for year of 1950". The testimony regarding this check shows that both plaintiff and defendant considered it to be a general bonus check, not a check for ...