Hughes v. Toledo Scale & Cash Register Co.

• Decision Date: 18 April 1905
• Citation: 112 Mo. App. 91,86 S.W. 895
• Parties: HUGHES v. TOLEDO SCALE & CASH REGISTER CO.
• Court: Missouri Court of Appeals

86 S.W. 895

112 Mo. App. 91

HUGHES v. TOLEDO SCALE & CASH REGISTER CO.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

MASTER AND SERVANT — WRONGFUL DISCHARGE — DEFENSES — PERFORMANCE OF CONTRACT — MISREPRESENTATIONS — DAMAGES — INSTRUCTIONS.

1. Where plaintiff was employed for a definite time, he was not entitled to recover wages

for the time he was sick and unable to fulfill his contract.

2. Where plaintiff contracted to give his whole time and attention and best endeavors to the business of his employer, he was not entitled to give some of his time to the business of another, though the attention so given did not interfere with his duty to his employer.

3. Where plaintiff, to induce his employment by defendant, falsely represented that he had an office located and furnished equal to that of one of defendant's competitors; such misrepresentation, unless waived, furnished sufficient ground to warrant defendant in canceling the contract.

4. In an action for breach of a contract employing plaintiff as defendant's general agent, it was error for the court to refuse to charge that if plaintiff declined to make or assist in making sales, or failed to properly instruct salesmen under him, and failed to furnish them with the necessary forms and supplies, and failed to fill orders sold by salesmen under him, though he had in his possession such forms and goods, and plaintiff rendered himself personally unfit to discharge the duties of his employment in the daytime by the manner and places in which he spent his nights, and failed to keep his office and exhibition machines in proper condition, and did not use his best endeavors in the business, etc., and by such neglect sales of machines were lost to defendant, defendant was entitled to discharge plaintiff.

5. In an action for wrongful discharge, a requested instruction that after plaintiff was discharged he had no right to remain idle, and that the jury, in assessing his damages, should deduct from his monthly contract salary whatever amounts he actually earned, or with reasonable effort could have earned, up to the expiration of the contract, was improperly refused.

6. Where a contract of employment bound defendant to pay rent for plaintiff's office, but there was no evidence that plaintiff paid any rent after November 30, 1902, when he was discharged, it was error for the court to refuse to charge that plaintiff was not entitled to recover anything on account of rent.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by William J. Hughes against the Toledo Scale & Cash Register Company. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff and defendant (a corporation) entered into the following contract:

"Toledo, Ohio, U. S. A., June 12, 1902.

"Mr. W. J. Hughes, 213 N. Twelfth Street, St. Louis, Mo.—Dear Sir: We hereby employ you for the term of one year beginning not later than June 23, 1902, as special representative of the company, you to devote your whole time and attention and best endeavors to the business of the company in such territory as the company may direct from time to time. Your duties to be generally, to select and instruct sales agents and to sell scales and assist agents to sell scales.

"Your headquarters are to be at St. Louis, in your present office, 213 North Twelfth street. We hereby agree to rent for one year, with the understanding that the owners of the property have the right to give us three months' notice to vacate said office. We agree to pay thirty dollars per month and no more for said office, we to pay no charges for office fixtures, light or water.

"For the present, you may employ a stenographer and if you think best for the company's interest to employ Miss Hart, you may do so, allowing her not to exceed fifty dollars per month. It is understood and agreed that we do not obligate ourselves to the payment of this sum per month during the entire term of contract, but shall furnish a competent stenographer during the above year.

"Your salary shall be two hundred and twenty-five dollars per month, payable one-half on the first and one-half on the fifteenth of the month. While traveling, we shall pay your actual reasonable traveling expenses, itemized statement of which will be sent to us regularly each week.

                  "Toledo Scale & Cash Register Company
                                "H. Theobald, Gen'l. Mgr
                  "Accepted June 12, 1902
                         "W. J. Hughes."
                

Immediately after making the contract, plaintiff entered upon the performance of his duties as agent for the defendant, and continued in defendant's employ until November 23d, when defendant rescinded the contract. It paid plaintiff's salary and expenses up to December 1st, having prior thereto taken possession of its goods, etc., in plaintiff's office.

The petition alleges the wrongful discharge of plaintiff by defendant, his inability to find other profitable employment, and asks for judgment for his salary for the balance of the term of his employment after his discharge, and for rent of office, and other expenses not necessary to set forth, as they were not proven, and, presumably, nothing was allowed by the jury for them. The answer is very voluminous, setting forth, among other things, that defendant was induced to enter into the contract by false and fraudulent representations, set out in detail, which will be noticed further on; that plaintiff did not give his whole time and attention to the business of the defendant; and divers and sundry other allegations to justify the cancellation of the contract. The new matter in the answer was put in issue by a reply.

The facts are as follows: Defendant is an Ohio corporation doing business and having an office in Missouri. It is a manufacturer of scales and cash registers, and has several competitors in the trade. Plaintiff, at the time the contract was entered into, was a general agent of the Moneyweight Scale Company, of Chicago, having the same territory that he was given charge of by the defendant, which included Missouri, Arkansas, Louisiana, Mississippi, and Alabama. In these several states plaintiff had under him active and efficient scale salesmen in New Orleans, La., Little Rock, Ark., Birmingham, Ala., and Jackson, Miss., and at other points. At the time the contract was made, plaintiff had his office at No. 213 North Twelfth street, St. Louis, Mo., which he testified he had fitted up at a cost of $3,000, and had in his employ a stenographer, the Miss Hart mentioned in the contract. At the time plaintiff was the principal stockholder and president (by courtesy, as he stated) of a corporation known as the American Light & Fixture Company, which had its office with plaintiff at No. 213 North Twelfth street. Plaintiff had some correspondence with the defendant before entering into the contract. He went to Toledo, where defendant's head office is located, and the terms of the contract were agreed upon by him and defendant's general manager, and then reduced to writing in the form of a letter. At the time negotiations for the contract were in progress, plaintiff represented to defendant's superintendent that his office was on the corner of Twelfth and Olive streets, that Olive street was one of the principal business streets of the city of St. Louis, and that his office was only two blocks from the office of the National Cash Register Company, a rival of defendant's in business, and who maintained an elegantly furnished office on Olive street.

Mr. Theobald, defendant's manager, testified that plaintiff represented to him that his office was as well furnished as that of the National Cash Register Company's. On May 20th, prior to the making of the contract, plaintiff wrote Mr. Theobald a letter, in which he stated: "I will also add in this connection, my office at Twelfth and Olive belongs to me in entirety and the lease is in my name. Olive street is the most prominent thoroughfare in St. Louis. My office is as well furnished as the N. C. R. Company's, which is just two blocks farther east on the same street. I would not exchange locations with them to-day." Mr. Theobald further testified that plaintiff gave him the names of Klapp, Foy, Baar, Yount, and Gallagher, as scale salesmen then working under him and selling goods for the Moneyweight Company, who would leave the latter company and work for the defendant if he (plaintiff) should be employed by defendant. Mr. Theobald testified he knew most of these men, by reputation, to be efficient scale salesmen, and the...