GEORGE A. FULLER CO. v. BROWN, 15 F.2d 672

PARKER, Circuit Judge (after stating the facts as above). [1,2] Defendant’s motion for judgment, at the conclusion of the evidence, was properly denied. Where a jury trial is waived pursuant to

section 649 of the Revised Statutes (Comp. St. § 1587), such motion corresponds to a motion for a directed verdict in a trial before a jury; and the exception to the refusal of the motion presents only the question as to whether'there was any substantial evidence before the court to sustain the allegations of the complaint. Societe Nouvelle d’Armement v. Barnaby (C. C. A. 9th) 246 F. 68, 158 C. C. A. 294.

In passing upon such motion, as in passing upon a motion by defendant for a directed verdict, we must view the evidence in the light most favorable to plaintiff, and must draw therefrom all conclusions and inferences which can legitimately be drawn in plaintiff’s favor.

The evidence establishes a promise by the defendant to pay to plaintiff as a “bonus” a share of the profits on each of the ships which it was engaged in building, conditioned upon plaintiff’s remaining in the employment of defendant and rendering satisfactory services until the completion of all of the ships, and, as to the ships not completed at the time of the promise, that the profits realized upon them should justify the payment.

It establishes that this promise of bonus was not of something vague and indefinite, but that a definite sum was paid plaintiff upon the completion of each of the first six ships, with the statement that this was approximately 50 per cent, of the bonus on that ship, and that the remaining 50 per cent, would be paid upon the completion of the twelve ships contemplated; that the bonus would be increased if the profits earned on succeeding ships should exceed the profits on the first; and that a similar amount would be distributed on succeeding ships if the profits earned should warrant same.

It establishes that plaintiff relied upon the promises of defendant, and continued in its employment, rendering satisfactory service until the shipyard was closed, and that, because of the promises made him, he declined employment elsewhere at an increased salary And it establishes that the condition as to the making of profits was unquestionably fulfilled as to the second, third, fourth, fifth, and sixth ships, which were constructed at even greater profit than the first.

In other words, the evidence shows a conditional offer on the part of plaintiff, acceptance on the part of defendant, a consideration, and a compliance with the conditions of the offer. Defendant’s position that there was no binding contract and consequently no liability on its part, rests upon three propositions:

(1) That there was no definite promise to pay a bonus, but merely an indefinite statement of intention to give a gratuity, the carrying out of which was to depend upon the discretion of its own officers; (2) that, in any event, the bonus was not to be paid, except as authorized by the officers of defendant, and that they had not authorized the payment of same; and (3) that it was a condition of the payment of the bonus that the twelve ships should be completed, and that this condition had not been complied with. We shall consider these in order.

As to the first proposition, we think that the statement made to plaintiff, and embodied in the paper attached to his receipt, was more than a mere expression of intention of giving a gratuity When considered in connection with the surrounding circumstances, it was a definite promise that plaintiff should share in the profits realized from each of the ships. Defendant had a profitable contract with the government, but, on account of disorganized labor conditions, the realization of profit from the contract depended upon its ability to hold its organization together and to proceed with the work.

It therefore made this offer to share profits, not only to plaintiff, but to various other persons who occupied positions in its organization, paying only half of the bonus to which they were entitled upon the completion of each of the ships, and holding back the other half, which it promised to pay upon the completion of the twelve which it represented that it intended to build.

It is true that the paper attached to plaintiff’s receipt contained the words, “This bonus is paid to you as a reward for the services you have rendered in the construction of the ship named, but it is understood that it is not a part of the compensation provided in your employment arrangements.” But, conceding to this language its full effect, it does not mean that the amount paid, or promised plaintiff, was a gift without consideration, but, as expressly stated, was a “bonus,” which “is not a gift or gratuity, but a sum, paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given.” Kenicott v.

Wayne County, 16 Wall. 452, 471, 21 L. Ed. 319; Noel, Collector, v. Parrott, 15 F.(2d) 669 (C. C. A. 4th) decided June 8, 1926; Payne v. U. S., 50 App. D. C. 219, 269 F. 872; Roberts v. Mays Mills, 184 N. C. 406, 114 S. E. 532, 28 A. L. R. 338; Zuolanek v. Mfg. Co., 150 Wis. 517, 137 N. W. 769, 44 L. R. A. (N. S.) 1214, Ann. Cas. 1914A, 793. The law applicable to such eases was well state.d by the late Chief Justice Clark, of the Supreme Court of North Carolina, in the case of Roberts v.

Mays Mills, supra, as follows: “It has become a very general policy with large employers of labor to offer a bonus or additional compensation to employees who shall render continuous and efficient service for a specified period of time. This is not a gratuity or gift, but is an offer on the part of the employer, with whom the offer originates in order to procure efficient and faithful service and continuous employment, and when the employee enters upon the service upon that inducement it becomes a supplementary contract of which he’cannot be deprived without sufficient cause.” In the case of H. S.

Kerbaugh, Inc., v. Gray (C. C. A. 2d) 212 F. 716, 129 C. C. A. 326, having under consideration the validity of an agreement to pay a bonus to certain employees, in addition to the salary paid them, Judge Ward, speaking for the court, said: “The objection mainly relied upon at the trial and here was that this promise of a bonus, if made, was nudum pactum because the plaintiff, being bound to do his best for his salary, gave nothing in the way of'Consideration to support the promise of a bonus.

This would be true if the plaintiff were legally bound to continue in the employment of the defendant to the end of the season. But he was not, and could have quit work at any time. Martin v. New York Life Ins. Co., 148 N. Y. 117, 42 N. E. 416.

Therefore the jury had a right to find that he continued in the employment after this promise of a bonus, relying upon it.” It is said, however, that there was no promise to pay the “bonus,” but a mere expression of hope or expectation on the part of defendant, mere “words of prophecy, encouragement, or bounty, holding out a hope, but not amounting to a covenant.” But we do not so interpret them. When the first $300 was paid to plaintiff, he was told: “This amount is approximately fifty per cent, of the total amount to be paid you.

The remaining fifty per cent, will be paid upon the completion of the twelve vessels now under construction.” (Italics ours.) And this same definite statement was either expressly or impliedly made each time a bonus was paid plaintiff on the five succeeding ships, and each time the receipt of plaintiff for the bonus money paid him was attached to a paper containing the same statement. It is clear that this was not mere “prophecy” or “holding out a hope,” but a definite promise.

The conditions following the promise we shall discuss later on, but, so far as this language is concerned, there can be no doubt that it is a promise. Nor do we think that the language as to the bonus to be paid on the succeeding ships is mere language of hope or prophecy.

It is true that the statement is that the defendant “expects” to distribute a share of the profits on each of the succeeding hulls, but this is followed by a qualifying statement which- not only adds a condition, but gives definiteness, viz. “Under the same conditions and in the same amounts provided, the profits earned warrant same.” And this was followed by the further statement that, if the profits on succeeding hulls should exceed that on the Cranford, the amount distributed as bonus would be increased.

Certainly this was intended by defendant as á promise to pay a bonus on succeeding hulls, in the same amount and under like conditions as the bonus paid on the Cranford, if the profits earned equaled the profits on the Cranford, and was intended to be so understood and aeted upon by plaintiff. The fact that the word “expects” was used instead of the word “promises” cannot change the matter. The law regards substance and not form, and it is perfectly clear that the language used was intended as an offer, and that it was accepted and aeted upon as such. What was said in the Zwolanek Case, supra, is applicable here.

In that case it appeared that the defendant had passed a bylaw which provided for the distribution of a share of the profits to be earned among employees who should have been in the service of the company continuously for a certain length of fame. No promise was made to the -plaintiff employee, but the by-law was called to his attention. It was argued that the bylaw was not a contract with the employee, but was made for the internal guidance and direction of the corporation.

In passing upon this contention, the Supreme Court of Wisconsin said: “To allow the employer in such a ease to repudiate liability on the ground stated would come perilously near conniving at the perpetration of a fraud, and no court should say that in such a ease the by-law merely affected the corporation and not third persons. * * * If corporations desire to have their so-called by-laws affect only the corporation and its shareholders, then they should refrain from exploiting them to third persons for the purpose of inducing such persons to act in reliance thereon.” Nor do we think that the promise is indefinite as to the amount to be paid, or vbid on the ground that a condition of the writing reserves to the officers of defendant the right to determine whether the bonus shall be paid or not.

When a portion of the bonus was paid plaintiff on the completion of each of the first six ships, it was agreed that this was approximately 50 per cent, of the bonus on that ship, and that the remaining 50 per cent, would be paid plaintiff later, upon the completion of the twelve ships. This was certainly definite enough. The promise to increase the bonus if the profits on succeeding ships should exceed the profits on the Cranford was too vague and indefinite to form the basis of the right of recovery as to such increase, but this would not defeat the right to recover that which was definitely promised.

As to the condition “that the officers of the George A, Fuller Company shall be the sole judge as to what bonus, if any, shall be paid,” we do not think that this can be construed as authorizing the defendant to arbitrarily withhold the payment of the remaining 50 per cent, of plaintiff’s share of the bonus on the first six ships, which defendant agreed to pay to him upon the completion of the twelve ships which it proposed to build.

To so construe it would, as counsel for defendant correctly argue, destroy the binding force of the contract; and certainly no construction should be adopted, if it is possible to avoid it, which would enable a party to thus “hold the promise to the ear and break it to the heart.” We must construe the instrument as a whole and in the light of the surrounding circumstances, bearing in mind that it provided not only for the payment of the retained portion of the bonus on the ship which had been completed, but also for the payment of bonuses on succeeding ships, for the increase" of the bonus if profits on succeeding ships should be greater, and for the forfeiture of the bonus if plaintiff’s services should be unsatisfactory or if his employment should be terminated prior to the completion of the twelve ships.

And, in the light of these circumstances, we are satisfied that the proper construction of the condition upon which defendant relies is that it reserves to the officers of defendant the right of determining whether plaintiff’s services had been satisfactory, whether the right to bonus had been forfeited by termination of employment, and whether the bonus should be increased on account of increased profits, and not the right of arbitrarily withholding from plaintiff the payment of that which he had already earned and which had been expressly promised to him.

As to defendant’s second proposition, that the officers of defendant have not authorized the payment of the remainder of the bonus, the answer is that the conditions upon which the remainder of the bonus was to be paid to plaintiff have been complied with except in so far as defendant, by closing its yard and abandoning construction, has rendered it impossible to comply with same.

Conceding that the contract vests in defendant’s officers the right of determining whether plaintiff has complied with the conditions of his contract, they cannot defeat his right by mere inaction, or by withholding the bonus on account of losses which they may have sustained on other ships, when the conditions upon which he was entitled to the remainder of the bonus have admittedly been complied with. B. & O. R. Co. v. Brydon, 65 Md. 198, 3 A. 306, 9 A. 126, 57 Am. Rep. 318; 2 Williston on Contracts, par. 677.

As to the proposition that the twelve ships were never completed, the answer is that the completion of the twelve ships was not a condition of the payment of the remainder of the bonus, but merely fixed the time at which it was to be paid. And it should be observed, also, that the payment of the remaining 50 per cent, of the bonus was not conditioned upon the realization of a profit on the twelve ships.

On the contrary, the contract made upon the completion of the first ship provided for the distribution of a share of the profits on “each” of the succeeding ones, and as each of the first six were completed, a distribution of half of the bonus was made. There was no condition that any part of the half which was retained should be withheld if the twelve ships were not completed, or if loss was sustained upon any of them.

As the remainder of the bonus was payable when the twelve ships should be completed, and as they were never completed, but construction was abandoned after the (Completion of the tenth, the law implies a promise to pay within a reasonable time. 21 R. C. L. 11; Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161. To hold that defendant could (avoid payment by its own failure to complete the twelve ships, in the language of Mr.

Justice Swayne in the ease last cited, “would be a mockery of justice.” And, even if the completion of the twelve ships be construed as a condition of the liability of defendant to pay the balance promised, the failure to complete them cannot avail the defendant, as defendant itself was responsible for the failure. “It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance, either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure.” 2 Williston on Contracts, par. 677; U. S. v. Peck, 102 U.

S. 64, 26 L. Ed. 46; Kelly v. Fahrney (C. C. A. 7th) 123 F. 280, 59 C. C. A. 298; Roberts v. Mays Mills, supra. Coming next to the assignments of error, which challenge the sufficiency of the evidence to support the findings made by the judge, we note that a question was raised in the briefs as to the power of the court to review the evidence for the purpose of determining whether it supports the findings of fact, but we think that the court, does have that power upon exception to the findings. Arcade v. A. R. Corporation (C. C. A. 2nd) 286 F. 809; U. S. v. Penn. & Lake Erie Dock Co. (C. C.

A. 6th) 272 F. 839; Chicago Life Ins. Co. v. Tiernan (C. C. A. 8th) 263 F. 325; Humphreys v. Third National Bank (C. C. A. 6th) 75 F. 852, 21 C. C. A. 538. Every finding of fact, however, having reasonable support in the evidence and tending to support the judgment, is binding on this court. Va. & W. Va. Coal Co. v. Charles (C. C. A. 4th) 254 F. 379, 165 C. C. A. 599. We do not examine the evidence to see whether the trial court has rightly decided the questions of fact, but only to determine whether there is any competent evidence sufficient to support the findings. Societe Nouvelle d’Armement v. Barnaby (C. C.

A. 9th) 246 F. 68, 158 C. C. A. 294. After a careful review of the evidence, . we think that all the findings excepted to are supported by evidence, except the finding that each of the eight vessels built for the Emergency Fleet Corporation other than hull 1446 was built at a profit commensurate with the profit on hull 1446. The evidence establishes that the profits on the second, third, fourth, fifth, and sixth vessels were commensurate with the profits on hull 1446, but there is no showing whatever that this was true with respect to the profits on the seventh or eighth vessels.

All that the evidence shows with respect to these vessels is that some profit was made on them. We must hold, therefore, that the tenth finding, in so far as it embraced the seventh and eighth vessels, was not supported by any sufficient evidence, and that the learned district judge erred in making the finding.

For the reasons given in 'discussing the defendant’s motion for judgment, we think that the facts found support the judgment; and, as the only error relates to the finding as to the profits on the seventh and eighth ships, and the consequent inclusion in the judgment of the “bonus” on these two ships, amounting to $1,200, we shall follow the course taken by us in Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co., 255 F. 645, 648, 167 C. C. A. 24, and Southern Gypsum Co. v. United Paperboard Co. (C. C.

A.) 11 F.(2d) 58, and give plaintiff the option to remit this $1,200 from the judgment, rather than submit to a new trial. It follows that the judgment of the District Court will be reversed, and the cause remanded for a new trial, unless the plaintiff shall pay all the costs in this court, and shall remit in writing on the judgment in the District Court the sum of $1,200 and interest thereon from November 20, 1920; and that, if the plaintiff shall pay such costs and make such remittitur within 60 days, the judgment of the District Court stands as affirmed. Reversed nisi.