American Nat. Ins. Co. v. Van Dusen

It is with regret that I feel compelled to disagree with the conclusions reached by the majority in disposing of the first and second assignments of error. It is true, as stated in their opinion, it is generally recognized as the law that where a printed provision of a contract contradicts, or is in conflict with, a written provision, the former must yield; but this is only where the two provisions are irreconcilable. There is also another well-recognized principle in the construction of contracts not directly referred to in the opinion of the majority, and that is, that the entire instrument must be taken and considered together. "If the instrument, when thus considered, is susceptible of a reasonable construction, by which all its provisions are made to harmonize, and by which full effect is given to its various parts, then that will be considered the correct interpretation." Hearne v. Gillett, 62 Tex. 26. The contract in question consisted of 26 stipulations, of which the first to the seventeenth are on the part of appellee, and the remaining 9 are on the part of appellant. The stipulations 1 to 13, inclusive, are printed, and the fourteenth to seventeenth, inclusive, are typewritten. In the eleventh, printed, appellee acknowledges the right of the general manager, or any other executive officer of appellant, to revoke the contract at pleasure, and further that he holds his position, subject to said right of revocation, only upon condition that he conform in all respects to the rules, instructions, and regulations of appellant, and *Page 639 that any violation thereof should subject him to immediate and unconditional dismissal. In the thirteenth, also printed, appellee agrees not to resign without having given seven days' notice. It will be observed that the only stipulations providing for the revocation of appellee's appointment, dismissal, with or without cause, and his resignation, are contained in the printed portions of the contract. These, standing alone, undeniably give to the appellant the right to revoke the contract at its pleasure, to dismiss appellee for cause, and permits the latter to resign at any time after having given seven days' notice. Are these provisions in irreconcilable conflict with the stipulation which provides that the contract shall remain in full force and effect for five years from its date, provided appellee shall make the stipulated increase and per cent. of collections?

I contend that they are not, and here 1 am not in harmony with the majority. It is usual in all contracts of this kind to stipulate a period of years, months, or days in which the contractual relation between the parties shall exist; and in all these this relation ceases at the end of the named period by efflux of time, if not sooner ended by one or the other parties under some right given by the contract itself. It seems to me that the stipulation in question should be construed as merely fixing a time in which the contract should run, unless sooner terminated by one or the other parties under some other stipulation. Those stipulations were that the appellant might revoke the contract at its pleasure, or that appellee might be dismissed for any violation of the contract, or of the rules, instructions, and regulations of the appellant, or for failure to make the stipulated increase or per cent. of collections, or by his voluntary resignation after having given seven days' notice. It is permissible to explain a written instrument by parol testimony when its different provisions are in irreconcilable conflict. If they are in such conflict then there is such an ambiguity as to let in parol evidence to explain just what the parties intended to contract for, but if this can be gathered from the instrument itself parol testimony is not admissible. It seems to me that it was not required in this case to look to any evidence to explain the contract other than the contract itself. The written portions were made a part of the printed form, and it follows that the form was made a part of the contract. All parts of the contract actually made and put in a definite form are equally binding in law, and the intentions of the parties must be derived from it. Now take the last typewritten stipulation, which the majority concludes is in hopeless conflict with the eleventh provision, and we find there a provision which recognized that the contract and the employment thereunder might terminate before the expiration of five years, by resignation or dismissal. What did the parties mean by the insertion of that provision? Certainly they did not intend to refer to any of the precedent typewritten provisions, for there is no stipulation in any of them relative to dismissal or resignation. Clearly, then, they had in mind the eleventh stipulation in which appellee acknowledges the right of appellant to revoke the contract at pleasure and to dismiss him for any violation or the rules, instructions, and regulations of the company, and the twelfth, in which appellee agrees not to resign without having given seven days' notice, and the thirteenth, which provides that in case of his resignation or dismissal he will introduce his successor to the agents of his district.

In the majority opinion it is asked, "If plaintiff accepted employment terminable at the will of the employer, why insert a clause giving him the right to remain in the employment on certain conditions?" and adds, "Such clause would give him no protection and would be entirely useless;" and upon this insists that the inconsistency and ambiguity in the contract are apparent. It may be answered that the eleventh stipulation having provided that the employer could terminate the contract at pleasure, the further provision in that stipulation that he might be dismissed for violation of the contract, or of the rules, instruction, and regulations of the employer, was unnecessary. But because of the insertion of this unnecessary provision it does not follow that an ambiguity arises between the acknowledged right of the employer to discharge the employe at pleasure, and the stipulation that he should continue his employment for five years. On the other hand, I think that the employment for a period of five years, subject to the precedent expressed condition of the employer's right to revoke the contract at will, is consistent with the abrogation of the contract and the employé's consequent dismissal at any time, with or without cause. This conclusion is in harmony with the holding of Judge Sanborn in Rankin v. Tygard, 198 F. 799, 119 C.C.A. 591, wherein he says:

"An election or appointment to an official position (as bank president) for a fixed term is, it is true, inconsistent with the removal during the term without cause in the absence of a precedent reservation of the right to make such a removal during the term. But an election or appointment to the office for a specified term subject to the precedent expressed condition that the elective or appointive power may remove at will at any time during the term is consistent with such a removal without cause and it is as much an election or appointment for a legal term as an election or appointment without such a reservation. It is an election, or appointment for a fixed term subject to recall and the legal term is the time the person elected or appointed will hold his office if the power to recall is not exercised."

Substantially to the same effect is Willcox v. Ewing, 141 U.S. 141, 12 S. Ct. 94, 35 L. Ed. 882. The majority in reaching the conclusion it has must not only ignore the eleventh stipulation, which expressly recognizes *Page 640 the right of revocation at pleasure, but other provisions of the contract as well. It must ignore language of the very clause upon which the decision is based, which expressly mentions other ways in which the employment may be terminated in addition to the lapse of time and failure to make the increase and per cent. of collections, as well as other parts of the contract to see how those causes may be made to operate. One of these is dismissal. Nowhere does the contract say dismissal must be for cause, but to the contrary it says it may be at pleasure. The right of resignation is recognized in this clause, but to see how resignation may be effected we are forced to look to other provisions. For causes for removal we are also forced to look to other provisions. Why then cannot those other provisions be looked to to see how dismissal may be effected? If we can so look, then we find that it may be at pleasure.

In my opinion there are no provisions of the contract that are so contradictory they cannot be harmonized, when the contract is construed in its entirety. If this conclusion is correct, it was the plain duty of the trial judge, and not the jury, to interpret it; and as there is no ambiguity in its provisions, as I construe the contract, the court, in my judgment, should have told the jury the appellant had the right to dismiss the appellee at pleasure, and that having exercised this right under the terms of the contract, the appellee was not entitled to recover.