Fortune v. National Cash Register Co.

373 Mass. 96, 364, N.E.2d 1251 (1977)

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Nature of the Case

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Facts

Fortune (P) was employed by NCR (D) under a salesman's contract that was terminable at will and without cause by either party. P got a salary and a bonus for all sales within his territory. The bonus plan worked at 75% if the territory was assigned to him at the date of the order, 25% if the territory was assigned to him at the date of delivery and installation, 100% if the sale and delivery were made while the territory were assigned to him. A bonus payment terminated if shipment of the order was not made within 18 months from the date of the order, unless the territory was assigned to him for coverage at the date of delivery and installation or special engineering was required to fulfill the contract. P's territory included First National. In November of 1968 P was the salesman of record for a $5,000,000 purchase order over a four-year period from First National. The amount of the bonus credit on the order was listed as $92,079.99. On January 6, 1969, P was terminated by a letter placed in his desk but dated on day after the sale to First National. The Boston branch manager told P to stay on with the company in a position entitled sales support in order for the First National deal to go smoothly. P received bonus payments at 75% and inquired but decided to forget about the other 25% as he was 61 with a son in college. Eighteen months after the termination notice, P was asked to retire. He refused and was fired. P did not receive any bonus payments from that date on. D did pay a systems and installation person the remaining 25% of the bonus commissions due contrary to its usual policy of only paying salesmen a bonus. At the close of P’s case, D asked for a directed verdict; there was no evidence of a breach of contract and that the existence of the contract barred recovery under quantum meruit. The judge ruled that P could recover if terminated in bad faith without specifying on which count that ruling pertained. The jury awarded P $45,649.62. D appealed.