15 S.W. 530 (Mo. 1891), Ehrlich v. The AEtna Life Insurance Company

• Judge: Black, J. Brace, J., absent.
• Parties: Ehrlich v. The AEtna Life Insurance Company, Appellant
• Citation: 103 Mo. 231,15 S.W. 530
• Docket Number: .
• Date: 23 February 1891
• Court: Missouri Supreme Court

Page 530

15 S.W. 530 (Mo. 1891)

103 Mo. 231

Ehrlich

v.

The AEtna Life Insurance Company, Appellant

Supreme Court of Missouri, First Division

February 23, 1891

October, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Reversed.

G. A. Castleman and D. C. Webb for appellant.

(1) The court erred in giving instruction, prayed by defendant, declaring the plaintiff contracted to furnish $ 1,000,000 new insurance in four years, and that it was not a breach of the contract for plaintiff to fail to furnish $ 250,000 new insurance in the first year of said contract. (2) The court erred in refusing the instruction, prayed by defendant, declaring that, under the evidence, the jury could not find that there existed in St. Louis a custom for general agents of insurance companies to take a vacation in the months of July and August. (3) The court erred in refusing instruction, asked by defendant, declaring that, if plaintiff failed to remit to defendant the money collected by him, defendant had a right to revoke said contract. (4) The case was submitted upon the testimony offered upon the case in chief; there was no conflict of testimony, and the three breaches assigned in the foregoing points were conclusively shown. It was, therefore, error for the court to refuse instruction asked by defendant at close of plaintiff's case, in the nature of a demurrer to the evidence. (5) Plaintiff, having pleaded that he absented himself from the business in pursuance of custom, must rest his justification on that plea. Weil v. Posten, 77 Mo. 287; State v. Roberts, 62 Mo. 388; Kuhn v. Weil, 6 Mo.App. 576; S. C., 73 Mo. 213; Nichols v. Larkin, 79 Mo. 264; Murdock v. Brown, 16 Mo.App. 548. A party cannot introduce evidence to contradict the averment of his own pleading. Bank v. Armstrong, 62 Mo. 65; Pullis v. Sims, 34 Mo. 246. (6) Custom cannot be set up to vary or contradict an express stipulation of a contract. Clark's Brown on Usages and Customs, pp. 60, 81, 155, 161, 165, 169, 170, 237, 260. (7) The contract involving one of personal service, plaintiff cannot recover on a quantum meruit. Henson v. Hampton, 31 Mo. 410; Caldwell v. Dickson, 17 Mo. 575; Earp v. Tylor, 73 Mo. 619. Wherever recovery on quantum meruit is permitted it is limited to the price fixed by the contract. Lowe v. Sinclair, 27 Mo. 311; Downey v. Burk, 23 Mo. 228; Helm v. Wilson, 4 Mo. 41; Lee v. Ashbrook, 14 Mo. 378; Lambert v. Hartshorne, 65 Mo. 551.

Noble & Orrick for respondent.

(1) The court did not err in giving instruction 1 for respondent. Ehrlich v. Ins. Co., 88 Mo. 255. (2) Where evidence of custom is given to control the construction of a written instrument, the jury are to determine its effect. Dawson v. Kittle, 4 Hill, 107; Goodyear v. Ogden, 4 Hill, 104; Lewis v. Marshall, 7 Man. & Gr. 729; Hutchinson v. Bowker, 5 Man. & Gr. 535; Nelson v. Hill, 8 M. & W. 806; Phillips on Ev., 408, 420.

Black, J. Brace, J., absent.

OPINION

Page 531

[103 Mo. 233] Black, J.

This is a suit based upon a contract executed by the defendant and the plaintiff, and dated September 16, 1880. On the first trial there was a judgment in favor of the plaintiff, which was reversed and the cause remanded by the St. Louis court of appeals.

Under former laws plaintiff appealed from that to this court, and we affirmed the judgment of the court of appeals, disposing of such questions as were then urged in this court on the record before us. The case was again tried on amended pleadings, the trial resulting in a judgment for the plaintiff in the sum of $ 4,991.53, and the defendant, under present laws, appealed directly to this court.

By the terms of the contract defendant appointed the plaintiff as its general agent to procure applications for life insurance throughout this state, Jackson county excepted; to receive premiums upon all policies issued upon such applications; to collect premiums upon renewals of the same, and to collect renewal premiums upon existing policies. For his services, and those of his agents, he was to have commissions on premiums [103 Mo. 234] collected, that is to say, twenty-five and thirty per cent. of the first year's premiums on term policies, and seven per cent. on single-payment policies, and a like per cent. on premiums collected on second and subsequent years on term policies "while he is actively working his territory."

The other material stipulations of the contract are in these words:

"This agreement further witnesseth: That said party of the second part hereby accepts the agency of said company and agrees to devote his entire time and energy to the business of said company and to no other, and employ a sufficient number of agents to canvass the territory named and to see that the company is represented therein by efficient, active agents; that he will be responsible to said company for all premiums on policies and renewals sent him and for all papers and documents intrusted to him; that he will account to said company on or before the tenth day of each month, or at any other time when required, for all premiums received by him, or his agents, and remit the amount of the same less such charges as he is entitled to by this agreement, and that he will conduct the business in all respects in accordance with the instructions of the party of the first part. * * * This contract is to continue in force and effect so long as the agreements made by said Ehrlich are fully complied with. Should said Ehrlich fail to comply with any of the conditions or obligations of this agreement it may be terminated by said company without delay. * * * Said Ehrlich agrees to furnish said company with at least two hundred and fifty thousand dollars ($ 250,000) new insurance each year during the term of four years from date hereof, on which the premiums are paid and reported to said company within the year. And if he fails to obtain that amount he will pay to the company seventy-five cents for each $ 1,000 which he lacks of furnishing the required $ 250,000 new insurance for that year, and to pay a like [103 Mo. 235] sum for each succeeding year during the term of four years. If in any one year said Ehrlich obtains, pays and reports to said company more than $ 250,000 new insurance the excess shall be credited on the succeeding year. And, if during the four years he shall obtain, pay and report to said company $ 1,000,000 new insurance then the company shall return to said Ehrlich what he has paid it because of not...