On appeal from the Supreme Court.
For the defendant-appellant, Bennett & Hanschka (John A. Bennett, of counsel).
For the plaintiff-respondent, Warren Dixon, Jr.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued to recover moneys claimed to be due for salary and commissions under an agreement, in writing, whereby defendant agreed to employ him as sales manager on a salary and commission basis. Plaintiff agreed to devote his "full time to the interest of the Smyth Sales Corporation in selling silent automatic oil burners." The action was brought to recover the sum of $50, one week's salary, and commissions in the sum of $867.11. Defendant, in its answer, admitted the making of the contract, and set up as
its first separate defense that plaintiff breached the agreement in that he did not devote his full time to defendant's business.
There as a verdict for the plaintiff in the sum of $1,118.84, including interest, and from the judgment entered thereon defendant appeals.
As grounds for reversal, it is urged that the trial judge erred (1) in striking out the first separate defense, and (2) in not permitting defendant to introduce evidence to sustain the allegations of that defense.
Prior to the trial, plaintiff applied to Chief Justice Gummere for an order striking out this defense. The application was denied. When the trial opened he renewed the motion, and while the trial judge did not formally order this defense struck out, he did so in effect by holding at the outset that the contract was severable, and that if the plaintiff did not devote his full time to defendant's business, the right of action pleaded would not thereby be defeated. Defendant duly excepted to this ruling. The record does not show that defendant offered testimony to sustain the pleaded defense, but in view of the trial judge's ruling, it was not incumbent upon it to do so.
An entire contract is a contract, the consideration of which is entire on both sides. Beach v. Mullin, 34 N.J.L. 343. The question whether a contract is entire, or divisible, in respect of the question of payment of the consideration, cannot be solved by the application of any fixed legal standard. It depends upon the intention of the parties, to be gathered from all the circumstances surrounding the agreement and from the face of the contract, if in writing. It is quite as much, as a rule, a question of fact as of law. Skillman Hardware Co. v. Davis, 53 Id. 144, 147.
In construing contracts, the essential question is to ascertain the intention of the parties. This rule, therefore, necessarily applies in ascertaining whether a contract is divisible or entire. Orenstein v. Kahn, 13 Del. Ch. 376; 119 A. 444; Shinn v. Bodine, 60 Pa. 182; Bamberger ...