Mayer v. Goldberg

By the terms of the contract, the plaintiff was to have a salary and certain expenses. He was to have “a commission ... on all sales over $24,000.” The decision must turn upon the construction to be given to the additional clause of the contract quoted in the statement of facts, to the effect that, if either party canceled the contract by giving the notice in writing mentioned, then at the close of that “period the accounts” between the parties were “to be settled on the same basis as though the full period of this contract had elapsed.” The plaintiff had been employed under the contract less than six months when the defendants canceled the same by giving the requisite notice. During that time his sales amounted to a little less than $24,000. The

*101defendants contend that be is entitled to no commissions, because bis sales did not exceed that amount, even tbougb they might have been double that amount bad the plaintiff continued in the employment of the defendants to the end of the year. In support of such contention, counsel seem to rely •on Stern v. Rosenheim, 61 Md. 503, 10 Atl. 221; Atkins v. Keener, 109 Ala. 143, 19 South. 402; Thompson v. Saco W. P. Co. 114 Mass. 159; Kelly v. Carthage Wheel Co. 62 Ohio St. 598, 57 N. E. 984. But in none of these cases did the contract contain any provision similar to the clause in question. The contract in the Maryland case is quite similar to what the contract in the case at bar would have been, had that clause been omitted, — -with this difference: That the employer in that case reserved the right to terminate the contract at the end of six months if the services were unsatisfactory, and in that event the employee was “to receive no further compensation.” It is well settled that in construing a contract all of its terms must be considered. Jacobs v. Spalding, 71 Wis. 177, 189, 36 N. W. 608; Gibbons v. Grinsel, 79 Wis. 369, 48 N. W. 255. The intention of the parties is to be gathered, if possible, from the language employed. Id.; T. B. Scott Lumber Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 671, 65 N. W. 513; Braun v. Wis. Rendering Co. 92 Wis. 247, 66 N. W. 196; Mississippi R. L. Co. v. Wheelihan, 94 Wis. 96, 98, 99, 101, 68 N. W. 878; Wisconsin M. & F. Ins. Co. Bank v. Wilkins, 95 Wis. 115, 69 N. W. 354. Thus it is held by the supreme court of the United States:

“In the interpretation of any particular clause of a contract, the court is required to examine the entire contract, and may also consider the relations of the parties, their connection with the subject-matter of the contract, and the circumstances under which it was made.” Chicago, R. I. & P. R. Co. v. Denver & R. G. R. Co. 143 U. S. 596, 609, 12 Sup. Ct. 479, 36 L. Ed. 277; Winona & St. P. L. Co. v. Minnesota, 159 U. S. 531, 16 Sup. Ct. 83, 40 L. Ed. 247.

*102Under the adjudications cited, and many others -which might he cited, the court is not at liberty to eliminate from the contract the particular clause in question, any more than it would he at liberty to add new provisions to the contract. The language of the late Judge Elliott in construing the contract is given in the foregoing statement of facts. We fully concur in what he there said, and it need not here be repeated. The words, “at the close of said period the accounts to be settled on the same basis as though the full period of this contract had elapsed,” manifestly mean what he held they do mean.

By the Gourt. — The judgment of the circuit court is affirmed.