Alldredge v. Twenty-Five Thirty-Two Broadway Corp.
| Decision Date | 06 May 1974 |
| Docket Number | No. KCD,TWENTY-FIVE,THIRTY-TWO,KCD |
| Citation | 509 S.W.2d 744 |
| Parties | William C. ALLDREDGE, Respondent, v.BROADWAY CORPORATION, Appellant. 26403. |
| Court | Missouri Court of Appeals |
Robert B. Olsen, Kansas City, for appellant.
Frederick Beihl, Kansas City, for respondent.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
This is an appeal from a judgment for $6,974.48 in favor of the respondent and against the appellant in a courttried case based upon a written contract of employment and involving respondent's claim for 'termination payment' thereunder. The court below was not requested to, and did not, make any specific findings of fact or conclusions of law nor file a written opinion as contemplated by Rule 73.01(b), V.A.M.R., but entered a general verdict and judgment in favor of the plaintiff-employee. All fact issues shall, therefore, be 'deemed found in accordance with the result reached.' Rule 73.01(b). Our review is upon both the law and the evidence as in suits of an equitable nature, and the judgment below shall not be set aside unless clearly erroneous, and we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d). Coach House of Ward Parkway, Inc. v. Ward Parkway Shops, Inc., 471 S.W.2d 464, 465 (Mo.1971); Mission Insurance Co. v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972).
We have carefully reviewed the transcript of the evidence, the exhibits and the briefs of the parties and find that there is very little factual dispute in this case. The defendant offered no evidence. This case, in essence, resolves to the narrow point of the interpretation to be given an employment contract between the parties, which contract is unambiguous and clear. We have concluded that the court below reached the right result and we affirm.
The essential factual background of this case may be summarized as follows:
In 1930, the plaintiff began his employment with the Seavey and Flarsheim Brokerage Company, a Missouri corporation engaged in the grocery brokerage business. Upon his promotion to the position of Manager of the Merchandise Department on November 26, 1951, plaintiff and his employer entered into the written employment contract here involved. Such contract was to 'remain in force and effect during the pleasure of both parties' and could be terminated by written notice.
In addition to the monthly salary specified in the agreement, the contract provided for 'additional compensation' to be paid upon the termination of the contract. In the event the company terminated the agreement, such sum was to be 10% of the compensation paid to Alldredge in the previous twelve months plus 1% of the total compensation paid to Alldredge during his total period of employment by the company. In the event Alldredge terminated the agreement, the sum was to be five per cent (5%) of the compensation paid in the previous twelve months plus one-half of one per cent (1/2%) of the compensation paid to Alldredge during his employment by the company. The contract provided, however, that the payment of such additional compensation was to be conditioned upon Alldredge's compliance with certain 'restrictive provisions'.
The 'restrictive provisions' were to the effect that after termination by either party, Alldredge would not engage directly or indirectly in the grocery brokerage business in competition with the company-employer. These provisions read as follows:
'6. In the event Alldredge shall terminate this Agreement, he shall not and expressly agrees that he will not, for a period of four (4) years from the date of such termination, in the States of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Minnesota, Iowa, Missouri, Arkansas, Wisconsin, Illinois, or in any other state of the United States in which the Company may at the time be operating:
(a) engage directly or indirectly in his own account or name, or in the account or name of another person or concern, in the grocery brokerage business or in any phase thereof (i.e. the brokerage of such commodities handled or represented by the Company now or at any time hereafter up to the date of termination);
(b) render service or lend his name directly or indirectly to any other person or concern engaged in the grocery brokerage business or any phase thereof as above defined;
(c) directly or indirectly act as a sales representative for any principal now, or at any time hereafter to the date of such termination, represented by the Company, or for any competitor of any such principal.
7. If this Agreement shall be terminated by the Company then Alldredge agrees that he shall not and will not for a period of two (2) years from the date of such termination in any of the territory described in paragraph 6 do any of the acts or things he has agreed he shall not do in subparagraphs (a), (b) and (c) of said paragraph 6.'
In 1966, the Seavey and Flarsheim Brokerage Company entered into negotiation with The Hoosier Brokerage Corporation whereby Hoosier was to purchase all of the assets of Seavey except its cash and accounts receivable. In addition to the purchase of the physical assets, Hoosier purchased the good will and the exclusive right to use the name 'Seavey and Flarsheim'. The selling company (plaintiff's employer) took the name 'Twenty-Five Thirty-Two Broadway Corporation' and went into an entirely different line of business. The buying company took the name 'Seavey and Flarsheim Brokerage Company, Inc.' and continued in the grocery brokerage business.
The uncontroverted testimony of the plaintiff was to the effect that as a shareholder in the corporation, he received written notice of a shareholders' meeting to be held in January of 1966 for the purpose of approving the proposed sale to Hoosier; that he did not attend the meeting; and that he had no knowledge of the detailed terms of the sale contract between his employer and Hoosier. At this time, he was Assistant to the President and Manager of the St. Louis office. He further testified that he did know that the sale was to take place by the end of February, 1966 and that he wrote to the President of the corporation Louis Flarsheim, to inquire about the additional compensation due upon termination. Plaintiff's Exhibit No. 3, a carbon copy of the letter, was admitted into evidence without objection, and reads as follows:
'To Mr. Louis Flarsheim
From W. C. Alldredge
Date 2--17--66
Dear Louis:
Since Seavey & Flarsheim Brokerage Company is terminating my contract, I expect to be paid in accordance with the terms of that contract.
The figures that Mr. Blackburn gave me on his recent visit to St. Louis were erroneous. Please have Mr. Rice correct these figures, and send me a check as soon as possible.
Yours very truly,
W. C. Alldredge
cc: Mr. Woodson
WCA/jw'
Plaintiff testified that he received the following 'Memo' (Plaintiff's Exhibit No. 4, received into evidence without objection) as a reply to his letter:
'March 1, 1966
Memo
William C. Alldredge termination pay under his employment agreement.
Salary for full time employeed (sic) by company
Under date of March 1, 1966, Louis Flarsheim informed the employees, including the plaintiff, of the sale by letter, stating:
'To All Seavey & Flarsheim Employees
No doubt you have informally heard that we have been negotiating a sale of our business and assets. This letter is official notice to you that effective as of midnight, February 28, 1966, that sale was consummated. The sale, of course, effects an immediate termination of our payroll and your employment by our company.
On behalf of all our management I want to express our great appreciation for your loyalty and cooperation to the company over the past years, and I want to add my own personal thanks.
We are pleased to be able to tell you the business of Seavey & Flarsheim will be continued under the name Seavey & Flarsheim Brokerage Company, Inc., and Marsh E. Blackburn, as President, will be writing you within the next few days. In the interim, he has asked me to advise you that he desires you to continue your employment with that company.
We are confident you will have a successful and happy relationship under the new management.
Sincerely,
/s/ Louis Flarsheim
LF/bm' (Emphasis supplied) Plaintiff testified that in February, 1966, Mr. Blackburn...
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Hallahan, Matter of
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