employee a percentage of the company's earnings during the year, in addition to his stated salary, if made concurrently with the contract for the employee's services for that year, at the beginning of the employment, is enforceable at the termination of the year's service. The court observed that if the promise for the bonus were made during the term of employment or after performance was complete it would not be enforceable.

So, where a company which had been accustomed to pay to employees a share of its profits equal to 20 per cent of their wages, at the end of the first year of the plaintiff's employment, paid him a share of the profit, at the same time sending him a letter urging employees to take a more active interest in the welfare of the business "in which they share the profits," and stating that by each employee giving the business his best efforts their mutual interest would be materially benefited, it was held in Snyder v. Hershey Chocolate Co. (1916) 63 Pa. Super. Ct. 528, that on remaining in the service during the succeeding year, the plaintiff could enforce payment of the 20 per cent bonus which the company gave to its employees at the close of the year. The court said: "We may assume that the payment of the additional wages was dependent upon the success of the business, and that there was no absolute promise to pay a definite sum contained in the letter above referred to. What amount was to be distributed was to be determined by the board of directors. It was certain that the workmen were to have a share in the profits, if any were made. This was the inducement to the men to continue in the company's employ. In other words, the promise was that at the end of the year there would be some distribution of profits, if any were made, and after the company fixed the amount which was to be distributed, then that which was indefinite became definite, and all the laborers employed by the company who had taken employment under the promise to

share if they continued to work during the year were entitled to receive their extra compensation fixed at 20 per cent of their wages during the year. The company offered this as an inducement to the laborers to continue in. its employ, and, this purpose being consummated by a fixing of the amount of the extra compensation, all the elements of a valid contract were present."

To the same effect, in an action against the same company by an employee to recover a bonus, is Scholl v. Hershey Chocolate Co. (1919) 71 Pa. Super. Ct. 244.

Where the promise of a bonus at the end of a year is held out to an employee who enters the employment during the year, as an inducement for his entering the service, the employee who accepts the offer by entering and remaining in the service is entitled to share in the distribution of the bonus declared by the employer at the close of the year's employment, even though no definite amount or percentage is held out to him as an inducement to enter the service. Orton & S. Co. V. Miltonberger (1920) 74 Ind. App. 462, 129 N. E. 47. The court said that when the employer promised a bonus he must be understood to have meant a bonus in such amount as the method adopted by it for its computation would produce, and that when the offer was accepted by performance of the services the employer was bound by its offer.

In a case involving the right of an employee to recover a bonus offered in a by-law of the employer company which contained a plan for the sharing by employees in the profits of the business, the court in Zwolenak v. Baker Mfg. Co. (1912) 150 Wis. 517, 44 L.R.A. (N.S.) 1214, 137 N. W. 769, Ann. Cas. 1914A, 793, in sustaining the right of the employee, said that a binding and enforceable contract to pay a reward rests, on one side, upon a valid offer, and, on the other side, upon an acceptance of such offer, including its terms and conditions, by a performance of the services requested in the offer, before

it lapses or is revoked; that until acceptance by performance of the services, it is merely a proposition, but that when accepted by perform ance it becomes a binding contract, subject to the laws governing contracts generally; that performance constitutes acceptance of the offer, and that, after performance, it cannot be revoked so as to deprive of compensation a person who has acted on the good faith thereof.

The court in Zwolenak v. Baker Mfg. Co. (Wis.) supra, held that the fact that the employee was working under a written contract which did not mention a right to extra compensation for continuous service did not prevent his recovering the same, if it was offered by his employer and he rendered the service to secure it; and that the fact that the provision for extra compensation was contained in a by-law of the corporation, and not in the employee's contract, was not a ground for denying recovery thereof to the latter, if the provision was communicated to and acted on by him.

In Liebenow v. Philippine Vegetable Oil Co. (1918) 39 Philippine, 60, where a corporation engaged the services of one as superintendent of its factory at a stated monthly compensation "and such further amount in the way of bonus as the board of directors may see fit to grant you," it was held that there was a valid enforceable contract for payment of something by way of bonus after the employee had served the year's term of employment contemplated by the contract, but that the amount of the bonus was left to the discretion of the employer, which discretion could not be judicially reviewed, and that the obligation was satisfied if something was paid as a bonus, even though it was but a nominal amount.

The validity of a promise by an employer to pay a bonus to employees, consisting of a certain percentage of earnings of the company, offered to stimulate production, so that employees, after rendition of the service, may recover the bonus, seems to be assumed in such cases as Hallock v.

Economy Drawing Table & Mfg. Co. (1923) Mich., 193 N. W. 825, where the question was as to the computation of the bonus.

The decision in Black v. W. S. Tyler Co. (1917) 12 Ohio App. 27, seems out of line with the other decisions above set out, or at least questionable, unless it can be regarded as based merely upon the particular provision of the profit-sharing plan offered by the employer to employee to the effect that employees who voluntarily left the service of the company or were dismissed or discharged forfeited their right to share in any dividend. The decision does not seem to be placed, however,exclusively at least,-on this provision, although the court calls attention thereto, but on the general ground that there was no enforceable contract between employer and employee for payment of the bonus in question. In this case, on July 1, 1914, the employer promulgated a profit-sharing plan for the benefit of employees, beginning January 1, 1915, and applying to the profits for the preceding year, the plan providing for a division of cash dividends between stockholders and employees who had been in the service of the company for six months or more. As already indicated, the plan provided that employees voluntarily leaving the service of the company, or dismissed or discharged, forfeited their right to dividends. The plaintiff was an employee during the year 1914 and received his share of the dividends which were declared for that year. He remained in the service during 1915, and early in 1916 the employer declared a cash dividend payable to employees in instalments during that year. About the middle of the year the employment was terminated because of discontinuance of the department in which the employee worked, and it was held that the latter could not recover instalments of dividends declared at the beginning of the year 1916, but which did not become payable until after termination of the employment. The plaintiff testified that he accepted

the offer of the employer, relied on it, and remained in the service because of it, but it was not shown that he communicated to the employer the fact of this reliance or acceptance of the proposition; and the court said that so far as was shown he would have continued up to the date of his dismissal had the profit-sharing plan not been adopted, and that, this being true, it could find no consideration for any contract obligating the employer to pay to the plaintiff the instalments of profits sued for. It was held also in Black v. W. S. Tyler Co. (Ohio) supra, that the instalment authorized by the directors of the employer company in January, 1916, did not become vested on that date so as to entitle the employee to recover the same, the court saying that the mere fact that the company decided, as a matter of policy, to offer to its employees a share of its profits, doubtless with the hope of encouraging efficiency and harmony among them, did not create a contract obligating it to pay the same the moment the dividend was declared, as though it were a declaration of a dividend on stock of the corporation; and that to become vested, a contract must have existed.

If the employee is already under obligation to serve for a stipulated time, for a specified compensation, then an offer on the part of the employer to pay an additional sum by way of a bonus may be lacking in consideration and unenforceable. This depends upon the view which the court takes regarding the validity of a promise to pay an additional sum for accomplishment of that which the promisee is already obligated to perform. And the authorities on this general question are not in harmony. The promisor, by making the offer of additional compensation, secures performance instead of a mere right of action for damages. The old contract might plausibly be regarded as yielding to the terms of the new offer. But this general question is one which, of course, cannot be profitably discussed, even theoretically, in the present

annotation. (See in this connection, annotation in 25 A.L.R. 1450.) There are several cases involving bonuses wherein the courts have held the promise or offer of a bonus unenforceable for lack of consideration.

The doctrine that where an employee is bound to serve for a definite time at a fixed salary, a promise made by the employer during this time to pay the employee at the close of the term of service an additional sum as a bonus is without consideration and cannot be enforced, is applied in Price v. Press Pub. Co. (1907) 117 App. Div. 854, 103 N. Y. Supp. 293, where a journalist was employed for a term of three years to work on a newspaper, the employer agreeing to pay not less than $9,000 the first year, $10,000 the second, and $11,000 the third. During the second year of this contract the employee asked for a release therefrom, stating to his employer that he intended not to break the contract and would carry it out, but that he had entered into an agreement for service with. another newspaper at the end of the term, and that for him to carry out his present contract would mean to him a loss of $10,000; whereupon the employer promised him that he would lose nothing by staying, and that a bonus of this amount would be given to him at the end of his service. It was held that after service of the term the employee could not recover the bonus, as he was already bound by the contract to serve for the time therein specified at the salaries fixed, and that there was no consideration for the agreement to pay this additional amount as a bonus.

It was held also in Davis v. Morgan (1903) 117 Ga. 504, 61 L.R.A. 148, 97 Am. St. Rep. 171, 43 S. E. 732, that if the contract of employment was for a year, at a stipulated monthly salary, an agreement by the employers to pay a certain additional sum to the employee if he remained in the service until the end of the year was not binding, being without consideration. The court said that the promise was to pay more than

was due, or to pay extra for what the employee was already legally already legally

bound to perform; that the employer received no more services than he had already contracted to receive, the agreement was a nudum pactum and void, and could not be supported on the ground of moral consideration.

And it is held in Duncan v. Cone (1915) 16 Ga. App. 253, 85 S. E. 203, in the syllabus by the court, that "where, during the pendency of a term of employment at a stipulated salary per month, a voluntary agreement, entirely apart from the contract of employment, is made by the employer, to pay the employee as a bonus some indefinite and undetermined share in the profits of the business, 'contingent on continuous and satisfactory services,' and this voluntary agreement is not supported by any change in place, hours, character of employment, or other consideration, the the agreement is not enforceable at law, as it is nudum pactum, and the grant of the bonus so promised is altogether optional because dependent upon whether the services of the employee are 'satisfactory' to the employer, and of this he is in such a case the sole judge." But the court expressed the opinion (obiter) that a promise made to the employee at the beginning of the term of employment to pay a bonus to the employee would be enforceable.

in this connection, Joseph Campbell Preserve Co. v. Holcomb (1903) 67 Kan. 48, 72 Pac. 552, in which it was held that in an action to recover excess salary claimed, the satisfaction of the employer at the end of the year must be proved, and that if no evidence of such satisfaction was shown, there could be no recovery, in the absence of fraud or bad faith on the part of the employer, where the contract of employment at a salary of $75 per month and traveling expenses provided that should the employee continue his service for an entire year, and should the character of his business as to volume, etc., and his manner of conducting it, be satisfactory to his employer, the latter would make the 28 A.L.R.-22.

salary equivalent to $100 per month by the payment of the $25 excess at the close of the year, the determination of which should be left entirely to the employer.

The doctrine that where extra compensation is promised by an employer for performance of work which the employee is already bound to perform, the contract is without consideration and unenforceable, is exemplified by such cases as Jereski v. Nussbaum (1917) 164 N. Y. Supp. 614, where, perhaps, the promise of additional compensation could not, strictly speaking, be considered as an offer of a bonus, it being held in an action by a stenographer against her employer, a lawyer, for special serv ices rendered while in his employment, that since the defendant was entitled to the plaintiff's entire time and services during the business hours of each day, if he promised her an additional sum over her regu lar salary for attending sessions during such business hours in a case in which he was acting as master in a Federal court, the promise was in the nature of a mere gratuity and unenforceable. The view taken in this case as to the gratuitous nature of the promise made by the employer is supported also by the later appeal in (1921) 190 N. Y. Supp. 866.

Distinct on the facts from the other cases above cited, and holding that if the promise on the part of the employer to pay a bonus to an employee contemplates the use of the bonus as a bribe to influence the actions of third persons holding positions of trust or confidence, the promise to pay the bonus cannot be enforced by the employee, is Smith v. David B. Crockett Co. (1912) 85 Conn. 282, 39 L.R.A. (N.S.) 1148, 82 Atl. 569, holding that if the bonus sued for were to be paid by a sales agent to purchasing agents as a bribe there could be no recovery thereof, as the agreement would be contrary to public policy.

The class of cases considered in the present annotation should be distinguished from those involving the question whether there is an

express agreement to pay a bonus or extra wages. See, for example, Jerome v. Wood (1907) 39 Colo. 197, 88 Pac. 1067, 12 Ann. Cas. 662, holding that under the circumstances an express agreement on the part of an employer to pay extra wages for increased work was not shown by evidence merely that the employer promised to "make it all right" or to "do well" by the employee if the latter remained in the service.

Among other cases holding that the statements made by the employer were too indefinite or too unsatisfactorily shown to constitute an enforceable contract for additional compensation or bonus are Donovan v. Bull Mountain Trading Co. (1921) 60 Mont. 87, 198 Pac. 436, and Varney v. Ditmars (1916) 217 N. Y. 223, 111 N. E. 822, Ann. Cas. 1916B, 758.

In Sibley v. Stetson & P. Lumber Co. (1920) 110 Wash. 204, 188 Pac. 389, the employee recovered a bonus, alleged to have become payable at the end of a year of service, as

against the objection that the alleged contract for the bonus was unenforceable because too indefinite and uncertain, and that the cause of action was barred by the Statute of Limitations, it being apparently assumed that there was no lack of consideration or of mutuality with respect to the contract.

That the meaning of the term "bonus" is not necessarily a gift or security, but a sum paid for services or upon a consideration in addition to or in excess of that which would ordinarily be given, is the statement in Kenicott v. Wayne County (1873) 16 Wall. (U. S.) 452, 21 L. ed. 319, a case not on facts within the scope of the annotation, involving the submission to voters of a proposition for a bonus for building a railroad. And this definition of the term "bonus" is approved and applied, among possibly other cases, in Payne v. United States (1921) 50 App. D. C. 219, 269 Fed. 871, a case involving the right to a bonus from oil and gas leases. R. E. H.

2. The court cannot direct the answer to an issue on conflicting evidence.

[See 26 R. C. L. 1068; 3 R. C. L. Supp. 1491; 4 R. C.. L. Supp. 1694.] Master and servant acceptance of

employment upon the inducement of an offer of a bonus for faithful and continuous service for a specified period cannot be deprived of the right to the bonus without sufficient cause. breach of contract — right to damages.

4. The posting by an employer of a notice that employees continuing