Beebe v. Columbia Axle Co.

• Decision Date: 04 April 1938
• Citation: Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624 (Kan. App. 1938)
• Parties: J. F. BEEBE, RESPONDENT, v. THE COLUMBIA AXLE CO., APPELLANT
• Court: Kansas Court of Appeals

117 S.W.2d 624

233 Mo.App. 212

J. F. BEEBE, RESPONDENT, v. THE COLUMBIA AXLE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

April 4, 1938

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

Judgment affirmed.

Garrett & Ruark for respondent.

Pruitt & Grealis and Calvin Vandeventer & Kimbrell for appellant.

OPINION

REYNOLDS, J.

This appeal comes to us from the circuit court of Jackson county. The suit grows out of an oral contract made between the plaintiff and the defendant on or about January 28, 1935 running for an indefinite period of time, by the terms of which the defendant employed the plaintiff to act in a certain restricted territory, embracing all of the State of Kansas and parts of western Missouri, as its exclusive agent or factory distributor of certain automobile and truck equipment manufactured by it, which contract by mutual oral agreement was afterward, in February, 1935, modified so as to eliminate the western part of the State of Kansas as a part of such territory.

The defendant, at the time mentioned, was engaged in the business of manufacturing axles, known as "Dual Ratio" or "Two Speed" axles, for Ford passenger cars and Ford trucks; and it was these axles that the plaintiff was employed to sell or distribute.

Confirmation of such oral agreements was made by the defendant by letters of dates January 29, 1935, and February 15, 1935, written by its director of sales, who had negotiated the contract with the plaintiff in behalf of the defendant. The letter of date January 29, 1935, was written to the defendant, apprising it of the negotiation of such contract and the terms thereof; and a copy of such letter was at the same time mailed to the plaintiff. The letter of date February 15 was written to the plaintiff.

By the terms of said contract, the retail prices agreed upon at which the plaintiff was to sell the defendant's axles were $ 69 for the passenger car axle and $ 125 for the truck axle; and it was agreed that the plaintiff should be allowed a discount of 50 per cent from said list or retail price and that he in turn should allow the dealers to whom said axles were sold a discount of 25 per cent, resulting in commissions as compensation to the plaintiff of $ 17.25 for each passenger car axle sold and $ 31.25 for each truck axle sold. Thereafter, about May 20, 1935, by mutual agreement, the price at which the plaintiff should sell the passenger car axle was changed to $ 6950; and the plaintiff's discount was changed to 40-10 and 5 per cent; and his discount on the truck axle was changed to 40 per cent. It does not appear that any change was made in the dealers' discount either upon the passenger car axle or the truck axle.

There is evidence in the record showing that the plaintiff, immediately upon the negotiation of said contract, entered upon his employment and that he performed all of the duties and obligations imposed upon him by the terms of said contract and devoted all of his time to the purposes of developing and promoting the sale and distribution of the defendant's axles or was at all times willing and ready to perform such contract. Preparatory to and for the purpose of performing said contract, he hired a salesman and other employees; set up an office; employed help in the maintenance of such office; and, in connection with the performance of such contract, traveled over his territory, contacted with and kept in touch with the dealers therein, purchased two Ford cars and equipped them with the defendant's axles, expended in such behalf in excess of the sum of $ 1500, and performed work and services of the value of $ 4000.

On December 5, 1935, after the plaintiff had expended money and had obligated himself as stated in the last preceding paragraph and had performed work and services in connection with the performance of his contract, the defendant terminated such contract and discharged the plaintiff and afterward appointed another in his stead and continued the development of the business started by the plaintiff. During the period that the plaintiff was in the employment of the defendant, acting as its agent and distributor, he received as commissions on sales of axles the net sum of $ 2500; and, during the same period, the defendant invaded the territory of the plaintiff by circularizing the dealers therein and selling to them at much reduced prices from those which the plaintiff was authorized to quote and act upon.

The evidence does not show that, prior to or at the time of the plaintiff's discharge by the defendant, the defendant made any complaint regarding the services rendered by the plaintiff. Upon the other hand, the defendant's director of sales, through whom the contract with the plaintiff was negotiated and under whose supervision the plaintiff performed his services, testified that he thought that the plaintiff's standing in his territory as a salesman was very good and that, at the time he was testifying, he still thought so; that "his manner of approach, his enthusiasm, dynamic personality and pleasant--" rendered him a good salesman; and that he, at all times until his discharge on December 5, considered him the exclusive agent of the defendant in the territory allotted to him.

The plaintiff, in his petition, sets out the contract and the modification thereof and states that, on December 5, 1935, he was unlawfully discharged by the defendant, without just cause and without being given a reasonable opportunity to avail himself of the results of his preliminary efforts and his expenditures, and that, upon such discharge, the defendant appropriated unto itself the results of such services and expenditures. The petition sets out the prices agreed upon at which the plaintiff should sell the defendant's axles, the discounts to be allowed him as compensation, and the discount to be allowed the dealers by him upon a sale to them. It alleges that, in pursuance of such contract and after entering upon its performance, he had expended and obligated himself for the reasonable sum of $ 1500 for wages of salesmen and other employees and for rent, office, traveling and other expenses, as shown by the exhibit attached to the petition; that he had performed work and services in connection with the performance of such contract of the value of $ 4000; that he had received as commissions or compensation on sales made during the time he was engaged in the performance of such contract the net sum of $ 2500. And it seeks judgment against the defendant for the difference between the sum of the expenditures and the value of his work and services less the commissions received by him, in the sum of $ 3000.

The petition, as originally filed, was amended by interlineation, by the insertion of the words "and obligated himself to expend for" immediately after the word "expended" in the seventh paragraph thereof and by the insertion of the words "as shown by Exhibit 'D' attached hereto and made a part hereof" after the word "expenses" in the seventh paragraph and was further amended by interlineation during the trial of the cause by the insertion of the word "reasonable" between the words "the" and "sum" in the seventh paragraph thereof, so that the seventh paragraph as amended was and is in words, as follows:

"Plaintiff states that after entering into said contract and prior to said discharge, he, in and about the performance of said contract. expended and obligated himself for the reasonable sum of One Thousand Five Hundred ($ 1500) dollars in wages of employees, office expenses, traveling expenses, rent and other expenses, as shown by Exhibit 'D' attached hereto and made a part hereof and that he performed work and services of the reasonable value of Four Thousand ($ 4000) Dollars; that he received as commissions or gross profits on sales of axles during said period the net sum of Two Thousand Five Hundred ($ 2500) Dollars, and that by reason of the foregoing premises, he has been damaged in the sum of Three Thousand ($ 3000) Dollars."

The answer tendered a general denial, coupled with a plea of section 2967 of the Statute of Frauds, Revised Statutes of 1929, and that part thereof which provides: "No action shall be brought . . . upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized . . ." and the further plea that the contract in this case was one which could not be performed within one year from the date of the making thereof and, by reason thereof, is invalid, nonenforceable, void, and of no legal force and effect as between the parties and that the defendant is not indebted to the plaintiff on account of any matters based upon or growing out of the contract in any form whatever.

The reply is a general denial.

The trial was before the court with a jury. At the conclusion of the plaintiff's evidence and again at the conclusion of the whole evidence, the defendant requested peremptory instructions in the nature of demurrers directing a verdict for it, which, in each instance, were by the court refused. The cause being submitted to the jury, the jury returned a verdict for $ 2246 for the plaintiff, upon which judgment was duly rendered in conformity therewith in favor of the plaintiff and against the defendant, from which judgment the defendant, after unsuccessful motions for a new trial and in arrest of judgment, prosecutes this appeal.

OPINION.

1. The first point made by the defendant is as follows:

"The contract which the plaintiff alleged in his petition, and which his testimony tended...