OPINION
GOODE, J.
--Biest,
the plaintiff, was in the service of the VerSteeg Shoe
Company and its predecessors, the VerSteeg-Grant Shoe Company
and the TriState Shoe Company as a traveling salesman from
the year 1892 to April, 1900, the territory he canvassed
lying in the southeast and southwest portions of Missouri,
the southern part of Illinois and certain towns in the States
of Indiana and Kentucky.
A
written contract was signed by Biest and the VerSteeg-Grant
Shoe Company on the first day of October,
1897, by which Biest was employed as salesman "in the
territory agreed upon" for the term of two years from
said date, to be binding for two more years unless he gave
written notice to the contrary sixty days before the
expiration of each year. Said contract was mutatis
mutandis, like the one to be quoted below with the
exception that the latter stipulated a list of towns to be
visited by Biest should be attached to it.
Plaintiff
continued to work under the first contract until the second
day of October, 1899, when it was extended for the further
period of six months, or until the first day of April, 1900.
In view of the approaching expiration of that extension,
Biest and the VerSteeg-Grant Shoe Company made another
contract on the fifth day of February, 1900, which is as
follows:
"This
agreement is made for a term of one year commencing April 1,
1900, between the VerSteeg-Grant Shoe Company and C. W.
Biest, and is to be binding for two more years unless written
notice be given to the contrary by C. W. Biest sixty days
before the expiration of each year. It is also agreed that if
the said C. W. Biest wishes to discontinue this contract on
October 1, 1900, he can do so by giving said VerSteeg-Grant
Shoe Company notice of same on August 1, 1900.
"The
VerSteeg-Grant Shoe Company agrees to employ C. W. Biest as
traveling salesman in the territory agreed upon (a list of
these towns is hereto attached) and further agrees to pay the
said C. W. Biest the sum of four thousand dollars per year
and necessary traveling expenses, not to exceed twenty-two
hundred dollars per year, provided his sales exceed one
hundred thousand dollars in the territory agreed upon. The
said C. W. Biest agrees to faithfully devote his full time
and energy to the sale of goods in the territory agreed upon.
"It
is further agreed that the said C. W. Biest will keep Frank
Hahn, or some one acceptable to the VerSteeg-Grant Shoe
Company actively engaged as helper in said work, and if the
party selected by said C. W. Biest should not be acceptable
to the said VerSteeg-Grant Shoe Company, the
guarantee clause of this contract relating to traveling
expenses shall be at the rate of fourteen hundred dollars
instead of twenty-two hundred dollars per annum for such
portion of the year or years still covered by this contract.
"It
is further agreed that should the sales in said territory not
reach the aggregate of one hundred thousand dollars the
guarantee shall be three thousand dollars instead of four
thousand dollars.
"The
VerSteeg-Grant Shoe Company further agrees to allow the said
C. W. Biest, when absolutely necessary, to cut the regular
catalogue selling prices (not including jobs or rubber goods)
to the extent of one-half per cent without deducting same
from his compensation, any amount in excess of one-half per
cent, or any shoes given away to customers or allowances made
or extra discounts allowed to be deducted by customer, are to
be charged to the said C. W. Biest or can be offset by the
sale of certain goods bearing an additional profit and so
designated in our catalogue. The one-half per cent to be
allowed only in case the sales exceed
one hundred and twelve thousand dollars against the highest
amount of salary and expense guaranteed.
"Should
the said C. W. Biest's sales fall below one hundred
thousand dollars then this one-half per cent allowance is to
be allowed him only if the amount of commissions that would
be due him on a five per cent basis exceeds the compensation
heretofore guaranteed to the said C. W. Biest; otherwise all
cuts in prices, allowances, etc., to be charged to the said
C. W. Biest.
"It
is further agreed that the said VerSteeg-Grant Shoe Company,
give said C. W. Biest credit for all duplicate orders filled
by us from his customers during each season ending April 1,
and October 1. Said VerSteeg-Grant Shoe Company, however,
agrees to give the said C. W. Biest credit for such mail
orders as may come from his customers for the two seasons
following the season in which he actually sold such customer
on the road and while in the employ of the VerSteeg-Grant
Shoe Company, on condition that proper efforts shall have been made by said C. W. Biest, or his
helper, in soliciting orders from said customer. This also
applies to all customers sold by him two seasons ago. New
accounts brought into the store by street men or our
neighbors not to be included (only after having been sold by
him first or next trip) only on such accounts (in the
territory agreed upon) as are sold by said C. W. Biest on the
road can credit be claimed.
"It
is further agreed that no credit can be claimed by said C. W.
Biest for orders not accepted, not shipped or not paid for,
or where costs of collection be five per cent or over.
"If
the said C. W. Biest's compensation, figured upon a five
per cent basis, as per above contract, exceed the salary and
expenses as guaranteed, the said VerSteeg-Grant Shoe Company
agrees to pay him such excess.
"It
is further agreed that the VerSteeg-Grant Shoe Company allow
the said C. W. Biest one per cent additional commission on
all goods sold to the Famous Shoe Company, being located in
East St. Louis, Illinois, and that this one per cent
additional commission will also apply to any store the said
C. W. Biest may become financially interested in and which we
may jointly agree to.
"It
is further agreed that said VerSteeg-Grant Shoe Company pay
the said C. W. Biest commission only on actual sales of
rubber goods, and the said VerSteeg-Grant Shoe Company
reserve the privilege of sending a special rubber salesman to
said towns and on which sales said C. W. Biest can claim no
commission.
"It
is further agreed that the said VerSteeg-Grant Shoe Company
will allow C. W. Biest access to the ledger twice a year in
checking up his list of sales.
"Signed
in duplicate this 5th day of February, 1900.
"VERSTEEG-GRANT
SHOE COMPANY,
"per
W. B. VERSTEEG, Secy."
A
dispute having arisen between the parties in regard to the
retention by the plaintiff of Frank Hahn,
the helper provided in the foregoing contract, plaintiff sent
in the checks for his sample trunks on the second day of
April, 1900, accompanied by the following letter:
"Saint
Louis, April 2, 1900.
"VerSteeg
Shoe Co., City:
"Gentlemen:
As my contract with your company has been broken by the
action of your president, Mr. VerSteeg, in discharging me and
refusing to recognize said contract, I herewith hand you my
checks for said sample trunks, which you, no doubt, will
want.
"Yours
truly,
"C.
W. BIEST."
In
answer to that letter the defendant wrote plaintiff the next
day as follows:
"April
3, 1900.
"C.
W. Biest,
"Botanical
Ave., City.
"Dear
Sir: Your note of April 2 duly received. You are mistaken in
saying that you are discharged by our president, Mr.
VerSteeg. On the contrary he insisted that you should carry
out all the terms of the understanding between us. If you
desire to go out on the road, we will hold your place open
for you for any reasonable time.
"Yours
truly,
"VERSTEEG
SHOE COMPANY."
Other
correspondence and negotiations looking to a continuance of
the relations of the parties followed, but they were unable
to come to terms and the result of the disagreement was the
present action, in which the plaintiff seeks in the first
count of his petition to recover on the contract of February
5, 1900, what he would have earned if that contract had been...
