Allan v. Hargadine-McKittrick Dry Goods Co.

• Decision Date: 25 June 1926
• Docket Number: No. 21408.,21408.
• Citation: 286 S.W. 16
• Parties: ALLAN v. HARGADINE-McKITTRICK DRY GOODS CO.
• Court: Missouri Supreme Court

286 S.W. 16

ALLAN v. HARGADINE-McKITTRICK DRY GOODS CO.

No. 21408.

Supreme Court of Missouri, Division No. 2.

June 25, 1926.

Appeal from St. Louis Circuit Court; Thomas Bond, Judge.

Action by George H. Allan against the Hargadine-McKittrick Dry Goods Company. From a judgment of nonsuit, plaintiff am peals. Reversed and remanded.

Anderson, Gilbert & Wolfort and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for appellant.

Nagel & Kirby and Charles P. Williams, all of St. Louis, for respondent.

Statement.

RAILEY, C.

On January 20, 1916, the plaintiff, George H. Allan, filed his petition in the circuit court of the city of St. Louis, Mo., against the Hargadine-McKittrick Dry Goods Company, a corporation. Omitting caption and signatures, said petition reads as follows:

"Plaintiff states that defendant is, and was at all times herein mentioned, a corporation duly organized.

"Plaintiff further states:

"That on or about the 1st day of October, 1914, George W. Simmons desired to have manufactured for him knapsacks and bags, and agreed with defendant that, if defendant would undertake to organize a factory force and manufacture said knapsacks and bags in its factory, he (the said George W. Simmons) would furnish all machines and factory equipment necessary for the manufacture of said bags and knapsacks which was not then in said factory, and would furnish all materials entering into the manufacture of said knapsacks and bags, and would furnish all money necessary to finance the operation of said factory; provided, however, said dry goods company would agree to run said factory night and day as far as possible, to manufacture and deliver said knapsacks and bags.

"That defendant then and there agreed with plaintiff that, if he would become a joint adventurer with defendant in the work of manufacturing said articles and carrying out its said contract with said Simmons, and if the plaintiff would undertake to form a factory force and organization for the purpose of manufacturing said knapsacks and bags, and would superintend and direct said organization and would work night and day, as far as possible in the manufacture of said knapsacks and bags, in event he could make a profit from the manufacture of said bags and knapsacks, plaintiff should be entitled to and would receive a good part or share of any profits accruing from the execution and fulfillment of said contract, but plaintiff should receive nothing if no profits were made.

"The defendant and plaintiff were the only persons interested in said adventure, and it was understood and agreed that the profits and losses, if any, of the venture should be shared equally between them.

"That then and there plaintiff agreed to work with defendant and form a factory force and organization and superintend and direct the same in the manufacture of said bags and knapsacks, upon the terms and conditions above set out.

"That thereupon said dry goods company entered into a contract with said George W. Simmons for the manufacture of said knapsacks and bags upon the terms and conditions above set out.

"That thereafter plaintiff did work with defendant and form a factory force and organization, and did enter into the manufacture of said knapsacks and bags, and did continue superintending and directing said force in the manufacture of the same until on or about October 5, 1915, and worked night and day as far as was possible in the manufacture of said knapsacks and bags. That all bags and knapsacks were manufactured and delivered by October 5, 1915. "That said George W. Simmons complied with said agreement, put up with defendant sufficient money to finance said factory during the entire time said bags and knapsacks were being manufactured, and paid to defendant all sums due defendant. That from the manufacture of said knapsacks and bags a profit, which is now in the possession of defendant, of over $60,000, was made.

"That plaintiff is entitled to $30,000, the same being one-half of the said profits, and that said sum is due and owing from the defendant to plaintiff. That defendant refuses to pay said sum and every part thereof, to plaintiff's damage in the sum of $30,000.

"Wherefore plaintiff prays judgment against defendant for $30,000, with 6 per cent. interest, and for his costs."

The defendant, in its answer to second amended petition, admits that it is a corporation, and denies every other allegation contained in said petition.

The case was reached for trial on June 10, 1918, before Judge Thomas Bond and a jury, the evidence of plaintiff was completed on the following day, and at the conclusion of same a demurrer to plaintiff's evidence was sustained, and appellant took an involuntary nonsuit with leave, etc. On June 12, 1918, plaintiff filed his motion to set aside said nonsuit, which was overruled on July 1, 1918. Thereafter, during the same time, on application of plaintiff, an appeal was duly allowed him to this court. Thereafter a bill of exceptions was filed in the trial court on March 20, 1926.

Evidence.

The only evidence offered in the case was that of plaintiff, George H. Allan, who testified as follows:

"My name is George H. Allan. For many years prior to the fall of 1914 I had been with the Hargadine-McKittrick Dry Goods Company. In the fall of 1914 I was in the employ of the Hargadine-McKittrick Dry Goods Company. I was in charge of the ready to wear shirt and neckwear departments. I had no title, and I received a salary for the years 1914 and 1915 amounting to $4,500 or $5,000 per year. I was also a stockholder in Hargadine-McKittrick Dry Goods Company. At that time the company had a factory on the fifth floor of a building at Twenty-Second and Washington avenue in St. Louis, Mo., under lease, and for which it was paying rent. It had been shut down a year previously. I had made them up a great many samples, and finally designed a bag their customer would accept. They wanted me to give them a price on 800,000 of them. We had a factory that was shut down that we had a lease on, that had not been operated for at least a year, that had never made us a dollar of profit since we had owned it, and I thought there was a chance of turning that factory—turning this business into that factory and making a very nice profit. He asked me how much. I told him I thought if I was let alone I could make $50,000 out of it, but that not to figure it that much; that we would make $39,000 or $40,000 I was sure; it depended on how it was worked. He said, `If you can turn the overall factory, which has always been a loser, to a profit anything like that, it will be the biggest thing this company ever did, and I hope you will leave nothing undone to get that business.' I told him I would figure out the cost; asked him if he would like to check my figures. He said he would be very glad to. I went ahead; went down to Simmons Hardware Company and quoted them a price.

"He checked over the figures. The Simmons Hardware Company then notified me that their client had changed their specifications, and that the bags would have to be made larger and out of very much heavier material, which necessitated a whole new arrangement again. I went back and made up other samples and made up other figures. I told Mr. McKittrick that the matter was still hanging fire; that we hadn't been able to cinch the contract, but I was still working on it. I submitted another set of samples and another set of figures, and I did that probably twenty times, until we finally got the cost we were to get out of those bags up to four times the original price. When we were up to where we could get the matter closed, I went back and reported to him the progress I had made; told him there was just one thing that stood in the wan and told him that was getting out the quantity. Every time we talked it over, the Simmons people changed their idea of how many they had to have per day; they began to crowd me so bad, I began to get skeptical as to our ability to turn them out. Mr. McKittrick insisted on me doing everything I possibly could to get the contract. It finally came to the point where the Simmons people said they were ready to accept our proposition, provided we would agree to turn out 6,000 a day. I told them the only way they could get us to do that, they would have to furnish the machines and guarantee them. They would have to deposit enough money ahead of all our expenses, so the Hargadine-McKittrick Dry Goods Company wouldn't have to put in a cent, and, if they would do that, there is no doubt— and would not crowd us too hard on deliveries—there was no doubt but what a very handsome profit could be worked out of the thing.

"I would say these negotiations took six weeks, probably two months. My guess would be six weeks. While I was talking to Mr. McKittrick, the Simmons people came up there and said they would have to change the arrangements, and we would have to agree to get out 8,000 bags a day, and we would have to agree to work day and night and double shifts, Sundays and holidays, and I said: `Gentlemen, I am through; I won't touch it.' The matter was for the moment disposed of. Mr. McKittrick came back to me and said to me: `I am awful sorry you have taken that stand; there is no one here would touch the thing at all. Can't we do something to get you to take up this matter, because it is too big a thing to drop?' I said: `Under no circumstances. I have all the work I want, and you can't make me enter into a contract to work Sundays, holidays, and nights; I have had enough of that already.' He said: `If I can get George Simmons to put in there to work day and nights and Sundays and holidays as far as practicable, and this firm will agree to give you a good part of the profits you can make, won't you undertake to do it?' I told him that if they would put in the contract or in the agreement that we will work day and nights and Sundays and holidays as far as practicable, and leave it...