Orville E. Fortune (Fortune) a former salesman of The National Cash Register Company (NCR) brought a suit to recover certain commissions allegedly due as a result of a sale of cash registers to First National Stores Inc. (First National) in 1968. Counts 1 and 2 of Fortune's amended declaration claimed bonus payments under the parties' written contract of employment. The third count sought recovery in quantum meruit for the reasonable value of Fortune's services relating to the same sales transaction. Judgment on a jury verdict for Fortune was reversed by the Appeals Court Fortune v. National Cash Register Co. 4 Mass. App. Ct. 386 (1976) and this court granted leave to obtain further appellate review. We affirm the judgment of the Superior Court. We hold for the reasons stated herein there was no error in submitting the issue of "bad faith" termination of an employment at will contract to the jury.

The issues before Court are raised by NCR's motion for directed verdicts. *fn1 Accordingly we summarize the evidence most favorable to the plaintiff. H.P. Hood & Sons v. Ford Motor Co. 370 Mass. 69 71 (1976).

Fortune was employed by NCR under a written "salesman's contract" which was terminable at will without cause by either party on written notice. The contract provided that Fortune would receive a weekly salary in a fixed amount plus a bonus for sales made within the "territory" (i.e. customer accounts or stores) assigned to him for "coverage or supervision " whether the sale was made by him or someone else. *fn2 The amount of the bonus was determined on the basis of "bonus credits " which were computed as a percentage of the price of products sold. Fortune would be paid a percentage of the applicable bonus credit as follows: (1) 75% if the territory was assigned to him at the date of the order (2) 25% if the territory was assigned to him at the date of delivery and installation or (3) 100% if the territory was assigned to him at both times. The contract further provided that the "bonus interest" would terminate if shipment of the order was not made within eighteen months from the date of the order unless (1) the territory was assigned to him for coverage at the date of delivery and installation or (2) special engineering was required to fulfil the contract. In addition NCR reserved the right to sell products in the salesman's territory without paying a bonus; however this right could be exercised only on written notice.

On November 27 1968 NCR's manager of chain and department stores and the Boston branch manager both part of NCR's team wrote to First National regarding the Class 5. The letter covered a number of subjects including price protection trade-ins and trade-in protection against obsolescence. While NCR normally offered price protection for only an eighteen-month term apparently the size of the proposed order from First National caused NCR to extend its price protection terms for either a two-year or four-year period. On November 29 1968 First National signed an order for 2 008 Class 5 machines to be delivered over a four-year period at a purchase price of approximately $5 000 000. Although Fortune did not participate in the negotiation of the terms of the order *fn3 his name appeared on the order form in the space entitled "salesman credited." The amount of the bonus credit as shown on the order was $92 079.99.

On January 6 1969 the first working day of the new year Fortune found an envelope on his desk at work. It contained a termination notice addressed to his home dated December 2 1968. Shortly after receiving the notice Fortune spoke to the Boston branch manager with whom he was friendly. The manager told him "You are through " but after considering some of the details necessary for the smooth operation of the First National order told him to "stay on " and to "[k]eep on doing what you are doing right now." Fortune remained with the company in a position entitled "sales support." *fn4 In this capacity he coordinated and expedited delivery of the machines to First National under the November 29 order as well as servicing other accounts.

Commencing in May or June Fortune began to receive some bonus commissions on the First National order. Having received only 75% of the applicable bonus due on the machines which had been delivered and installed Fortune spoke with his manager about receiving the full amount of the commission. Fortune was told "to forget about it." Sixty-one years old at that time and with a son in college Fortune concluded that it "was a good idea to forget it for the time being."

NCR did pay a systems and installations person the remaining 25% of the bonus commissions due from the First National order although contrary to its usual policy of paying only salesmen a bonus. NCR by its letter of November 27 1968 had promised the services of a systems and installations person; the letter had claimed that the services of this person Bernie Martin (Martin) would have a forecasted cost to NCR of over $ 45 000. As promised NCR did transfer Martin to the First National account shortly after the order was placed.

Approximately eighteen months after receiving the termination notice Fortune who had worked for NCR for almost twenty-five years was asked to retire. When he refused he was fired in June of 1970. Fortune did not receive any bonus payments on machines which were delivered to First National after this date.

At the close of the plaintiff's case the defendant moved for a directed verdict arguing that there was no evidence of any breach of contract and adding that the existence of a contract barred recovery under the quantum meruit count. Ruling that Fortune could recover if the termination and firing were in bad faith the trial Court without specifying on which count submitted this issue to the jury. NCR then rested and by agreement of Counsel the case was sent to the jury for special verdicts on two questions: *fn5

"1. Did the Defendant act in bad faith when it decided to terminate the Plaintiff's contract as a salesman by letter dated December 2 1968 delivered on January 6 1969?

"2. Did the Defendant act in bad faith when the Defendant let the Plaintiff go on June 5 1970?"

The jury answered both questions affirmatively and judgment entered in the sum of $45 649.62. *fn6

The central issue on appeal is whether this "bad faith" termination constituted a breach of the employment at will contract. Traditionally an employment contract which is "at will" may be terminated by either side without reason. See Fenton v. Federal St. Bldg. Trust 310 Mass. 609 612 (1942); Mechanics Foundry & Mach. Co. v. Lynch 236 Mass. 504 505 (1920); Gebhard v. Royce Aluminum Corp. 296 F.2d 17 18-19 (1st Cir. 1961); 9 S. Williston Contracts SEC. 1017 (3d ed. 1967); Restatement (Second) of Agency SEC. 442 (1958). Although the employment at will rule has been almost uniformly criticized see Blades Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power 67 Colum. L. Rev. 1404 (1967); Blumrosen Workers' Rights Against Employers and Unions; Justice Francis - A Court for Our Season 24 Rutgers L. Rev. 480 (1970) it has been widely followed.

• The contract at issue is a classic terminable at will employment contract. It is clear that the contract itself reserved to the parties an explicit power to terminate the contract without cause on written notice. It is also clear that under the express terms of the contract Fortune has received all the bonus commissions to which he is entitled. Thus NCR claims that it did not breach the contract and that it has no further liability to Fortune. *fn7 According to a literal reading of the contract NCR is correct.

We do not question the general principles that an employer is entitled to be motivated by and to serve its own legitimate business interests; that an employer must have wide latitude in deciding whom it will employ in the face of the uncertainties of the business world; and that an employer needs flexibility in the face of changing circumstances. We recognize the employer's need for a large amount of control over its work force. However we believe that where as here commissions are to be paid for work performed by the employee the employer's decision to terminate its at will employee should be made in good faith. NCR's right to make decisions in its own interest is not in our view unduly hampered by a requirement of adherence to this standard.

On occasion some courts have avoided the rigidity of the "at will" rule by fashioning a remedy in tort. *fn8 We believe however that in this case there is remedy on the express contract. *fn9 In so holding we are merely recognizing the general requirement in this Commonwealth that parties to contracts and commercial transactions must act in good faith toward one another. Good faith and fair dealing between parties are pervasive requirements in our law; it can be said fairly that parties to contracts or commercial transactions are bound by this standard. See G. L. c. 106 SEC.1-203 (good faith in contracts under Uniform Commercial Code); G. L. c. 93B SEC.4 (3) (c) (good faith in motor vehicle franchise termination).

A requirement of good faith has been assumed or implied in a variety of contract cases. Druker v. Roland Wm. Jutras Assocs. 370 Mass. 383 385 (1976). Kerrigan v. Boston 361 Mass. 24 33 (1972) (collective bargaining contract). Murach v. Massachusetts Bonding & Ins. Co. 339 Mass. 184 187 (1959) (insurance contract -- insurer must exercise discretionary power to settle claims in good faith). Krauss v. Kuechler 300 Mass. 346 (1938). Clark v. State St. Trust Co. 270 Mass. 140 153 (1930) (secondary agreement to a stock option agreement). Elliott v. Kazajian 255 Mass. 459 462 (1926) (broker's commission). Chandler Gardner & Williams Inc. v. Reynolds 250 Mass. 309 314 (1924) (contracts to be performed to the satisfaction of the other party).

The requirement of good faith was reaffirmed in RLM Assocs. v. Carter Mfg. Corp. 356 Mass. 718 (1969). In that case the plaintiff (RLM) a manufacturer's representative of the defendant (Carter) was entitled to a commission on all of Carter's sales within a specified territory. Either party could terminate this arrangement on thirty days' notice. Carter cancelled the agreement shortly before being awarded a contract discovered and brought to Carter's attention by RLM. Because "[t]he evidence permitted the conclusion that Carter's termination of the arrangement was in part based upon a desire to avoid paying a commission to RLM" (id.) we held that the question of bad faith was properly placed before the jury. The present case differs from RLM Assocs. in that Fortune was credited with the sale to First National but was fired immediately thereafter. NCR seeks to avoid the thrust of RLM Assocs. by arguing that bad faith is not an issue where it has been careful to protect a portion of Fortune's bonus commission under the contract. We disagree. The fact that the discharge was after a portion of the bonus vested still creates a question for the jury on the defendant's motive in terminating the employment.

Recent decisions in other jurisdictions lend support to the proposition that good faith is implied in contracts terminable at will. In a recent employment at will case Monge v. Beebe Rubber Co. 114 N.H. 130 133 (1974) the plaintiff alleged that her oral contract of employment had been terminated because she refused to date her foreman. The New Hampshire Supreme Court held that "[i]n all employment contracts whether at will or for a definite term the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment and the public's interest in maintaining a proper balance between the two. We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice constitutes a breach of the employment contract. Such a rule affords the employee a certain stability of employment and does not interfere with the employer's normal exercise of his right to discharge which is necessary to permit him to operate his business efficiently and profitably."

We believe that the holding in the Monge case merely extends to employment contracts the rule that "'in every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract which means that in every contract there exists an implied covenant of good faith and fair dealing' [emphasis supplied]. Uproar Co. v. National Broadcasting Co. 81 F.2d 373 377 (1st Cir.) cert. denied 298 U.S. 670 (1936) quoting from Kirke La Shelle Co. v. Paul Armstrong Co. 263 N.Y. 79 87 (1933)." Druker v. Roland Wm. Jutras Assocs. 370 Mass. 383 385 (1976). Restatement (Second) of Contracts SEC. 231 (Tent. Drafts Nos. 1-7 (1973). 5 S. Williston Contracts SEC. 670 (3d ed. 1961).

In the instant case we need not pronounce our adherence to so broad a policy nor need we speculate as to whether the good faith requirement is implicit in every contract for employment at will. It is clear however that on the facts before us a finding is warranted that a breach of the contract occurred. Where the principal seeks to deprive the agent of all compensation by terminating the contractual relationship when the agent is on the brink of successfully completing the sale the principal has acted in bad faith and the ensuing transaction between the principal and the buyer is to be regarded as having been accomplished by the agent. Restatement (Second) of Agency SEC. 454 and Comment a (1958). The same result obtains where the principal attempts to deprive the agent of any portion of a commission due the agent. Courts have often applied this rule to prevent overreaching by employers and the forfeiture by employees of benefits almost earned by the rendering of substantial services. See e.g. RLM Assocs. v. Carter Mfg. Corp. 356 Mass. 718 (1969); Lemmon v. Cedar Point Inc. 406 F.2d 94 97 (6th Cir. 1969); Coleman v. Graybar Elec. Co. 195 F.2d 374 (5th Cir. 1952); Zimmer v. Wells Management Corp. 348 F. Supp. 540 (S.D.N.Y. 1972); Sinnett v. Hie Food Prods. Inc. 185 Neb. 221 (1970). In our view the Appeals Court erroneously focused only on literal compliance with payment provisions of the contract and failed to consider the issue of bad faith termination. Restatement (Second) of Agency SEC. 454 and Comment a (1958).

NCR argues that there was no evidence of bad faith in this case; therefore the trial Court was required to direct a verdict in any event. We think that the evidence and the reasonable inferences to be drawn therefrom support a jury verdict that the termination of Fortune's twenty-five years of employment as a salesman with NCR the next business day after NCR obtained a $5 000 000 order from First National was motivated by a desire to pay Fortune as little of the bonus credit as it could. The fact that Fortune was willing to work under these circumstances does not constitute a waiver or estoppel; it only shows that NCR had him "at their mercy." Commonwealth v. DeCotis 366 Mass. 234 243 (1974).

NCR also contends that Fortune cannot complain of his firing in June 1970 as his employment contract clearly indicated that bonus credits would be paid only for an eighteen-month period following the date of the order. *fn10 As we have said the jury could have found that Fortune was stripped of his "salesman" designation in order to disqualify him for the remaining 25% of the commissions due on cash registers delivered prior to the date of his first termination. Similarly the jury could have found that Fortune was fired (or not assigned to the First National account) so that NCR could avoid paying him any commissions on cash registers delivered after June 1970.

Conversely the jury could have found that Fortune was assigned by NCR to the First National account; that all he did in this case was arrange for a demonstration of the product; that he neither participated in obtaining the order nor did he assist NCR in closing the order; and that nevertheless NCR credited him with the sale. This however did not obligate the trial Court to direct a verdict. Where evidence is conflicting the rule is clear: "If upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in favor of the plaintiff then there was no error in the denial of the motion even if there may be other and different circumstances disclosed in the evidence which if accepted as true by the jury would support a conclusion adverse to the plaintiff." Howes v. Kelman 326 Mass. 696 696-697 (1951).

We think that NCR's conduct in June 1970 permitted the jury to find bad faith.

NCR also argues that Fortune failed to follow the notice and grievance procedure *fn11 set forth under the contract. It is clear that these provisions were inserted to settle disputes among salesmen and between a salesman and his branch manager. They are not applicable to termination grievances. Fortune had no dispute either with his branch manager or with Martin. Even if the dispute could be characterized as being between Fortune and Martin we note that Martin was not a salesman. Assuming however the provisions covered terminations Fortune would have been excused if the fact finders had drawn the inference that NCR would not have complied with its obligations had it received timely notices. The law does not require useless acts. See Leigh v. Rule 331 Mass. 664 668 (1954); Nevins v. Ward 320 Mass. 70 73 (1946); Schayer v. Commonwealth Loan Co. 163 Mass. 322 324 (1895); Restatement of Contracts SEC. 306 Comment a (1932); 5 S. Williston Contracts SEC.(S) 676 699 (3d ed. 1961). A refusal to pay a sum due under a contract excuses performance of a condition requiring notice. Jackson & Co. v. Great Am. Indem. Co. 282 Mass. 337 342 (1933) (proof of loss to insurance company). United States v. Conti 64 F. Supp. 187 (D. Mass.) aff'd 158 F.2d 581 (1st Cir. 1946) (notice of contract termination). Where an employer repudiates or nullifies procedures established by the contract the employee is excused from performance of the conditions imposed on him. Balsavich v. Local 170 International Bhd. of Teamsters 371 Mass. 283 286 (1976). See Restatement of Contracts SEC. 302 (1932); 3A A. Corbin Contracts SEC. 759 (1960). Accordingly the trial Court was not required to direct a verdict on Fortune's failure to comply with the notice and grievance procedure of the contract. *fn12

Finally NCR argues that Fortune is not entitled to recover because he failed to bring his suit within two years after the cause of action accrued as required by the contract. *fn13 We note that NCR did not raise the shorter limitation period in its answer or amended answer as required by Mass. R. Civ. P. 8 (c) 365 Mass. 749 (1974). Moreover the shorter limitation period was not argued to the trial Court. Accordingly we need not decide whether Fortune was also excused from this contractual requirement as this claim is not properly before us. See Kagan v. Levenson 334 Mass. 100 106 (1956) and cases cited. In view of the jury's finding of bad faith we think any reliance by NCR on this provision would be of no avail. There was no error.

Judgment of the Superior Court affirmed.