Schneider v. Hagerstown Brewing Co.

Urner, I., delivered the opinion of the Court. The appellant agreed in writing with the Hagerstown Brewing Company, the appellee, to serve as its brewmaster for the period of five years from December 5th, 1913. The agreement provided that the salary to be received by the appellant for his services should be $150 per month, “payable as follows: Thirty dollars per week in cash, payable on the 15th and 1st day of the month for twelve months (one year), ¹⁵³ and at the end of the one year, the balance of salary, thirty dollars ($30.00) per month, to be paid in Brewery Company stock, par value $100.00 per share, making a total salary for the year eighteen hundred dollars ($1,800.00), and samo to follow every year,” so long as the contract remained in force. After serving under the agreement for three years and three months approximately, the appellant voluntarily severed his relations with the company on March 1st, 1917, having secured similar employment at another .brewery.

The cash compensation specified in the contract was regularly paid the appellant while he continued iu the service of the appellee company, but noue of the stock which was to form part of his salary was ever issued. There was no request for the stock by the appellant until bis connection with the company was ended. In this suit he seeks to recover the par value of the stock to which he claims to have been entitled. The appeal is from a judgment entered on a directed verdict for the Brewing Company.

The only testimony in the case is that of the plaintiff, and it shows conclusively that iu leaving the service of the defendant he committed a breach of his contract of employment. Thera is no support for the theory, urged in the argument, that tiho agreement was abrogated by mutual consent. According to the plaintiff’s testimony he secured employment elsewhere and then notified the defendant company of that fact and of his intention to discontinue Ms service as its brewmaster. In view of the finality of this decision and announcement there was nothing left for the company to do but to employ another brewmaster to take the place which the plaintiff was vacating, and its recognition of that necessity could not be construed as a consent to his abandonment of the position.

The breach of the contract by the plaintiff disentitled him to claim any of the stipulated compensation except that which had previously accrued. As to the assertion of any other rights under the agreement, the plaintiff was clearly de ¹⁵⁴ barred by Ms own default in the performance of his contractual duty. The utmost extent of any legitimate claim he could prefer against the defendant, after Ms voluntary withdrawal from its service, was to- be paid any installments of salary which were fully earned and payable at that time. 18 R. C. L. 536; 26 Cyc. 1043; Note to Lynn v. Seby ( 29 N. D. 420 ), L. R. A. 1916 E. 798. If the contract had been entire and indivisible both as to the period of service and as to the payment of compensation, the plaintiff’s breach would have deprived him of any right of action for the partial performance.

Gill v. Vogler, 52 Md. 666 ; Meyer v. Frenkil, 113 Md. 45 ; Waddell v. Phillips, 133 Md. 499 . But the agreement was divisible as to the salary payments. The cash salary was payable semi-monthly, and the compensation in stock was to be settled annually. There were three annual installments of stock to wMch the plaintiff had become entitled prior to Ms breach of the agreement.

The compensation in cash for wMch it provided having been fully paid, the only right which the plaintiff could still assert had relation to the stock which he had earned but had not yet received. The plaintiff’s theory is that he is entitled