Balton v. Knollman Paper Co.

• Citation: 253 S.W. 433
• Decision Date: 26 June 1923
• Docket Number: No. 17848.,17848.
• Parties: BALTON v. KNOLLMAN PAPER. CO.
• Court: Court of Appeal of Missouri (US)

253 S.W. 433

BALTON v. KNOLLMAN PAPER. CO.

No. 17848.

St. Louis Court of Appeals. Missouri.

June 26, 1923.

Appeal from St. Louis Circuit Court, Benj. J. Klene, Judge.

"Not to be officially published."

Action by Wallace F. Balton against the Knollman Paper Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Marion C. Early and Ivon Lodge, both of St. Louis for appellant.

Robert J. Kratky, of St. Louis for respondent.

ALLEN, P. J.

The petition herein is in three counts. The first count alleges that plaintiff entered the employ of the defendant corporation on August 20, 1903, and that it was then agreed between plaintiff and defendant that, in addition to a salary to be paid' plaintiff regularly each month, he was to share in the profits of the defendant as part compensation for his services; such profits to be ascertained and determined annually, though not to be paid plaintiff annually but to be allowed to accumulate with defendant until the amount due plaintiff on account thereof should aggregate $500, when the same would be paid to him by defendant. It is alleged that at the end of defendant's fiscal year in 1908 it was ascertained, and so agreed between the parties that plaintiff's share in such profits then aggregated $500,. but that said sum was not paid to plaintiff; it being thereupon agreed between plaintiff and defendant that plaintiff's accumulated share of the profits would not be paid to him until " it reached $1,000. It is further alleged that at the end of defendant's fiscal year in 1912 it was ascertained, and so agreed between the parties, that plaintiff's share in the profits had then reached $1,000, but that defendant did not pay the same to plaintiff but forced plaintiff, under penalty of dismissal, to lend defendant said sum at an annual interest rate of 5 per cent.; that plaintiff thereafter received his share of the profits at the end of each fiscal year, with interest on said $1,000, until the fiscal year ending in 1919. at which time it was ascertained and agreed that plaintiff's share of the profits for that year was $670, which amount defendant did not pay to plaintiff in a lump sum but, without plaintiff's consent, "started to pay to plaintiff in ten equal installments"; that plaintiff left defendant's employ on January 31, 1920, having received but $94 of his share of the profits for the year 1919, leaving a balance due him for that year of $576, and making a total of $1,576, with interest, due him from defendant, for which judgment is prayed.

The second count of the petition is upon a similar cause of action assigned to plaintiff by one Knehans who, it is alleged, entered defendant's employ on February 17, 1903, under an agreement similar to that between plaintiff and the defendant. The allegations of this count are practically identical with those of the first count except as to dates and amounts. It is alleged that Knehans allowed his share of the profits to accumulate until, in 1908, it `reached $500, when it was agreed that it would be allowed to further accumulate until it reached $1,000, in 1912, when defendant forced him under penalty of dismissal to lend defendant same at 5 per cent. interest. It is alleged that Knehans left the employ of defendant on May 1, 1919, having received annually, after 1912, his share of the profits, together with interest on said 51,000, until the end of defendant's fiscal year ending in 1918; that his share of the profits for the fiscal year ending in 1918 was $360, of which he received but $155, leaving a balance of $250 due him on his share of the profits for that year, making the total indebtedness of defendant to him $1,205, with interest, for which judgment is prayed.

A third count is upon a similar cause of action assigned to plaintiff by one Hormann, who is alleged to have entered defendant's employ on February 6, 1905, under an agreement similar to that between plaintiff and defendant. It is alleged that Hormann allowed his profits to accumulate, as did plaintiff and Knehans, until, in 1912, they aggregated $1,000, at which time he also was forced, under penalty of dismissal, to lend defendant the same at 5 per cent. interest. There are no allegations as to any profits due Hormann for subsequent years. It is alleged that defendant paid him 5 per cent. on the $1,000 until defendant's fiscal year ended in 1916, and that Hormann left defendant's employ on January 1, 1917. Judgment is prayed on this account for $1,060 and interest thereon.

The amended answer to the first count, after certain formal admissions, contains a general denial. And for further defense the defendant alleges that plaintiff was employed by defendant at a regular salary, and that by the contract of employment it was mutually agreed between the parties that during each year while plaintiff remained in defendant's employ a specified percentage of the business produced by plaintiff would be set aside and allowed to accumulate "until the same should amount to a sum named"; that it was agreed that such sum would remain the property of defendant subject to certain terms and conditions, to wit:

"Defendant would have the privilege to discharge plaintiff only upon two grounds, to wit, drunkenness or dishonesty; and it was further agreed that plaintiff would have the right to terminate his said employment only upon the condition that he first give defendant 60 days' notice of his desire to terminate said employment and that after the termination thereof he would not engage in the same or any similar business as that conducted by defendant, nor enter into competition with defendant, directly or indirectly, in the city of St. Louis, within a period of one year, less one day, after said employment had ended as aforesaid."

The answer further alleges that plaintiff was not discharged by defendant for either of the causes mentioned above, but that plaintiff, without giving defendant said required notice, and against the will of defendant, breached his contract and immediately entered into and established a business of the same character and in competition with defendant, within a few blocks of defendant's place of business. And it is alleged that the conditions of said employment and the performance thereof by plaintiff "were precedent to any interest whatsoever of plaintiff to said fund or any part thereof," and that by reason of said breach of contract by plaintiff, he has no right or interest whatsoever in said fund and has lost all claim thereto.

The answers to the second and third counts of the petition are practically identical with that to the first count, and for our present purposes they need not be set forth.

The reply puts in issue the new matter of the answer.

Plaintiff's testimony tends to support the allegations of the first count of the petition; and he denied that there was any agreement with defendant as to giving notice of the termination of the employment; or as to entering into business in competition with defendant. He admitted that he, Knehans, and Hormann were conducting a business within two blocks of defendant's place of business, dealing in goods of much the same character as those dealt in by defendant. He said that he gave one or two weeks' notice of his intention to quit the employment.

The testimony of Knehans tends to support the averments of the second count of the petition. He testified that he knew nothing of any requirement as to giving notice of quitting the employment; that there was no agreement regarding the matter, or with respect to entering into a rival business. On cross-examination, referring to the matter of notice, lie said:

"There was one time that Mr. Knollman made a remark in a meeting about something of that kind, but it was merely suggested, on his part as a guarantee to the company to give them 60 days' notice, to give them a chance, I suppose, to get another employe in your place."

When asked what were the conditions under which the $1,000 was retained by defendant, he said: "There were no conditions." He testified that he gave two or three weeks' notice of his intention to quit the employment.

The testimony of Hormann tends to support the averments of the third count of the petition. He entered defendant's employ in 1905, and from his testimony it appears that nothing was then said as to giving notice of quitting the employment. He testified, however, that about 1916, at one of the meetings of employes at defendant's place of business, Mr. Knollman said that he "thought it would be right if one of us would leave the employ to give him 30 days' notice." And the witness said that subsequently Knollman "suggested he thought we ought to give him 60 days, but that was something we never knew it was in effect, if it was." When asked what Mr. Knoilman told him "about going in business with a rival concern," he said: "Well, he went to work and told us that we shouldn't go to work for another house that was in the similar line of business he was engaged in." He said that this was told him, not when he first went to work for defendant, "but somewhere around 1915"; and, though he had, heard Knoilman mention the matter of going into a rival business, he did not understand that he was to forfeit his bonus by doing so. His testimony is that he gave about 25 days' notice of his intention to quit the employment.

It appears from plaintiff's evidence...