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GILLIAN v. CONSOLIDATED FOODS CORP. (03/14/67)

decided: March 14, 1967.

GILLIAN
v.
CONSOLIDATED FOODS CORP., APPELLANT



Appeal from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1964, No. 3290, in case of David Gillian v. Consolidated Foods Corp.

COUNSEL

Nochem S. Winnet, with him Franklin A. Wurman, Charles M. Solomon, and Fox, Rothschild, O'Brien & Frankel, for appellant.

Murray C. Goldman, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 424 Pa. Page 409]

David Gillian (Gillian), the sole owner of a business concern engaged in the sale of detergents under the name of "Uni-Clean Products" (Uni-Clean), on January 3, 1964, entered the employment of Consolidated Foods Corporation (Consolidated), pursuant to an oral agreement which he had negotiated with James R. Tyson (Tyson), vice-president and general manager of Consolidated. This oral agreement provided that Consolidated would purchase Uni-Clean's inventory for $2,500, assume certain of Uni-Clean's outstanding obligations and employ Gillian in a supervisory capacity in the L. H. Parke Division of Consolidated at a salary of $15,000 per year plus $3,000 expenses and 3% commissions on certain sales and certain fringe benefits.

After entering upon such employment, Gillian became concerned that he did not have a fixed term of employment, it being his desire to secure a five-year term of employment. On February 17, 1964, Gillian entered into an agreement in writing with Consolidated, this agreement being signed by Tyson on behalf of Consolidated. This agreement recited that in consideration of "annual remuneration . . . in the amount of $15,000 salary and $3,000 expenses plus a 3% commission of all Uni-Clean detergent sales", Gillian would cease any activity in the name of Uni-Clean and give to Consolidated unlimited use of the brand name "Uni-Clean". The agreement contained no mention of any fixed term of employment. Gillian bases his claim on this written agreement as well as an oral agreement with Tyson.

On September 11, 1964, Consolidated, acting through Tyson, discharged Gillian from its employment assigning as the reason therefor the necessity of reducing business operation costs.

[ 424 Pa. Page 410]

Gillian then instituted an equity action in the Court of Common Pleas of Philadelphia County against Consolidated seeking (a) restraint of Consolidated from using the name "Uni-Clean", (b) an accounting by Consolidated of all profits arising from its use of the name "Uni-Clean" and a direction that Consolidated pay over to Gillian any amount found to be due, (c) that Consolidated pay over $7,615.30 with interest to Gillian and (d) such other relief as might be deemed proper. Upon issue joined, the matter was heard by Judge James T. McDermott. After hearing, the chancellor found (1) that Gillian was employed, under an oral and written contract, for one year commencing February 17, 1964, (2) that Gillian was wrongfully discharged on September 11, 1964, and (3) that Gillian sought to mitigate the damages but such efforts were unsuccessful. Upon such findings, the chancellor awarded Gillian damages from September 11, 1964 to February 17, 1965 in the amount of salary Gillian would have received during such period plus interest -- $6,863.77 -- and directed Consolidated to account to Gillian for all sales under the written contract during the period from February 17, 1964 to February 17, 1965. Exceptions to the chancellor's adjudication having been dismissed by the court en banc and a final decree entered, an appeal was taken to the Superior Court which certified the appeal to this Court.

Consolidated presents six questions on this appeal: (a) whether Gillian has shown Tyson's authority to bind Consolidated to the alleged contract of employment? (b) whether there was any credible evidence to warrant a finding of a one-year employment contract? (c) whether there was any credible evidence to warrant a finding of a one-year employment contract commencing on February 17, 1964? (d) whether there was a sufficient evidentiary basis for the chancellor's finding that, prior to his employment by Consolidated,

[ 424 Pa. Page 411]

Gillian had been engaged in a profitable business? (e) where, on his own account, Gillian, subsequent to his discharge, made sales, should not the amount of any profit from such sales be taken into consideration in mitigation of damages? (f) in urging a settlement in ...


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