Bennett v. St. Louis Car Roofing Co.

• Decision Date: 07 December 1886
• Citation: 23 Mo.App. 587
• Parties: T. E. BENNETT, Appellant, v. ST. LOUIS CAR ROOFING COMPANY, Respondent.
• Court: Missouri Court of Appeals

23 Mo.App. 587

T. E. BENNETT, Appellant,

v.ST. LOUIS CAR ROOFING COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 7, 1886.

APPEAL from the St. Louis Circuit, Court AMOS M. THAYER, Judge.

Affirmed.

FRANK M. ESTES, for the appellant: Contracts for personal services are entire, and can not be apportioned. The obligations of the parties are reciprocal. Garp v. Tyler, 73 Mo. 617; Dorrus v. Smit, 15 Mo. App. 583; Hanel v. Freund, 17 Mo. App. 620; Henson v. Hampton, 32 Mo. 408; Arnold v. School Dist., 73 Mo. 226; Plummer v. Frost, 81 Mo. 425. The company had no right to discharge the plaintiff, except for cause. The company exceeded its powers by the resolution of December 28. Cheney v. Railroad, 68 Ill. 570; Trustees, etc., v. Shaffer, 63 Ill. 243. In construing an instrument, the evident intention of the parties should be taken into consideration to give it its properlegal effect. 2 Pars. on Cont. 623; Mallan v. May, 13 M. & W. 511; 14 L. J. Ex. 48; Rubey v. Coal & M. Co., 21 Mo. App. 167.LEO RASSIEUR & DEXTER TIFFANY, for the respondent: In a suit for services rendered under a contract, the plaintiff can recover only if he proves the existence of the contract, and also its performance. Eyermann v. Mt. Sinai Cem. Ass'n, 61 Mo. 491.

ROMBAUER, J., delivered the opinion of the court.

On the first trial of this cause the court below rendered judgment in favor of the plaintiff on the admissions of the answer. We held on the defendant's appeal that the averments of the pleadings did not admit of that disposition of the cause, and remanded it for new trial. 19 Mo. App. 349.

The pleadings were amended before the cause was re-tried. The contention between the parties was whether the plaintiff had a contract with the defendant corporation for an annual hiring at a fixed compensation, and whether he had performed the services contemplated by such contract. The petition asserted the affirmative of these two propositions, and claimed a balance due, which is admitted to be correct, if the two propositions are established by the evidence. The answer denied both propositions.

The plaintiff relied upon the following minute entry in the corporate records, as constituting the contract sued upon.

“JULY 1, 1883.

The election of officers for the ensuing year took place, and the following officers were unanimously elected: Theodore Plate, pres. and treas.; Thomas E. Bennett, v.-pres. and secretary, and John C. Wand, sup. and contr. agent. On motion of Mr. Plate, the salaries of the above named officers were fixed at $150 per month for each person.”

The plaintiff also gave evidence tending to show that besides the routine duties of secretary, he was expected to, and did, for a time, do other duties for the corporation, such as keeping accounts, collecting bills, etc. None of these additional duties, however, were performed after February 1, 1884.

The defendant relied on the action of its board in December, 1883, resolving that from and after February 1, 1884, the office of secretary would cease to be a salaried office, and gave evidence tending to show that the plaintiff, even prior to that date, failed and refused to perform such additional duties, as the contract of hiring contemplated.

The court declared the law to be that the resolution of July 1, 1883, offered in evidence, was a contract for hire by the...