Biest v. Ver Steeg Shoe Co.

• Decision Date: 25 November 1902
• Citation: 70 S.W. 1081,97 Mo. App. 137
• Court: Missouri Court of Appeals
• Parties: BIEST v. VER STEEG SHOE CO.<SMALL><SUP>*</SUP></SMALL>

70 S.W. 1081

97 Mo. App. 137

BIEST v. VER STEEG SHOE CO.^*

Court of Appeals at St. Louis, Missouri.

November 25, 1902.

STATUTES OF FRAUDS — CONTRACT NOT TO BE PERFORMED IN A YEAR — SERVICES TO BE RENDERED — SUFFICIENCY OF MEMORANDUM — PLEADING — VARIANCE.

1. An agreement which cannot be performed in one year from the date of making is within

the statute of frauds, although it may be completely performed in one year from the time when performance is to begin.

2. An agreement fixing a definite period for performance, to continue to a date more than one year after the making of the agreement, is within the statute.

3. The contract of a party to render service to another for more than a year from its date is within the statute, notwithstanding one or both parties may have the option of ending the contract by notice before a year elapses.

4. A written contract employing plaintiff "as a traveling salesman in the territory agreed upon (a list of these towns is hereto attached)," which was never completed by making out a list of the towns and attaching it to the contract, is not a sufficient memorandum to take the agreement out of the statute of frauds, because an essential term of the agreement, namely, the territory to be traveled by the plaintiff, was not noted in writing.

5. The second count of the petition held to sufficiently charge that defendant agreed to pay plaintiff the amount of his necessary traveling expenses, not to exceed a certain sum, instead of charging that he was to be paid said sum absolutely; and held, further, that there was no variance between the contract pleaded and the one proven in this regard.

6. There was sufficient proof to go to the jury as to what plaintiff's necessary traveling expenses actually were.

7. An instruction telling the jury, if they found for the plaintiff on the second count of his petition, their verdict should be in such sum as they found to be justly due him under the contract, was so modified by other instructions telling them how to estimate the damages to plaintiff that the jury were not left to pass on the law of the matter, but were advised specifically as to what facts they must weigh in estimating the damages.

8. Instructions that if plaintiff gave some attention to his own affairs while in defendant's employ, with defendant's consent, and that if he gave time to his own affairs, but not so as to take up time which should have been devoted to defendant's business, such acts were not breaches of plaintiff's contract, held proper, especially in view of the counterparts of said instructions given at defendant's request, that if plaintiff neglected defendant's business, to attend to his own, this was a breach of his contract.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; William Zachritz, Judge.

Action by Christian W. Biest against the Ver Steeg Shoe Company. Judgment for plaintiff, and defendant appeals. Reversed.

Biest, the plaintiff, was in the service of the Ver Steeg Shoe Company and its predecessors, the Ver Steeg-Grant Shoe Company and the Tri-State Shoe Company, as a traveling salesman, from the year 1892 to April, 1900; the territory he canvassed lying in the south and southwest portions of Missouri, the southern part of Illinois, and certain towns in the states of Indiana and Kentucky. A written contract was signed by Biest and the Ver Steeg-Grant Shoe Company on the 1st day of October, 1897, by which Biest was employed as salesman "in the territory agreed upon" for the term of two years from said date, to be binding for two more years unless he gave written notice to the contrary 60 days before the expiration of each year. Said contract was, mutatis mutandis, like the one to be quoted below, with the exception that the latter stipulated that a list of towns to be visited by Biest should be attached to it. Plaintiff continued to work under the first contract until the 2d day of October, 1899, when it was extended for the further period of six months, or until the 1st day of April 1900. In view of the approaching expiration of that extension, Biest and the Ver Steeg-Grant Shoe Company made another contract on the 5th day of February, 1900, which is as follows: "This agreement is made for a term of one (1) year, commencing April 1, 1900, between the Ver Steeg-Grant Shoe Co. and C. W. Biest, and is to be binding for two (2) more years unless written notice be given to the contrary by C. W. Biest sixty (60) days before the expiration of each year. It is also agreed that if the said C. W. Biest wishes to discontinue this contract on October 1, 1900, he can do so by giving said Ver Steeg-Grant Shoe Co. notice of same on August 1, 1900. The Ver Steeg-Grant Shoe Co. agrees to employ C. W. Biest as traveling salesman in the territory agreed upon (a list of these towns is hereto attached), and further agrees to pay the said C. W. Biest the sum of four thousand dollars ($4,000) per year and necessary traveling expenses, not to exceed twenty-two hundred dollars ($2,200) per year, provided his sales exceed one hundred thousand dollars ($100,000) in the territory agreed upon. The said C. W. Biest agrees to faithfully devote his full time and energy to the sale of goods in the territory agreed upon. It is further agreed that the said C. W. Biest will keep Frank Hahn, or some one acceptable to the Ver Steeg-Grant Shoe Co., actively engaged as helper in said work; and, if party selected by said C. W. Biest should not be acceptable to the said Ver Steeg-Grant Shoe Co., the guaranty clause of this contract relating to traveling expenses shall be at the rate of fourteen hundred dollars ($1,400) instead of twenty-two hundred dollars ($2,200) per annum for such portion of the year or years still covered by this contract. It is further agreed that, should the sales in said territory not reach the aggregate of one hundred thousand dollars ($100,000), the guaranty shall be three thousand dollars ($3,000) instead of four thousand dollars ($4,000). The Ver Steeg-Grant Shoe Co. further agrees to allow the said C. W. Biest, when absolutely necessary, to cut the regular catalogue selling prices (not including jobs or rubber goods) to the extent of one-half per cent., without deducting same from his compensation. Any amount in excess of one-half per cent., or any shoes given away to customers, or allowances made, or extra discounts allowed to be deducted by customer, are to be charged to the said C. W. Biest, or can be offset by the sale of certain goods bearing an additional profit, and so designated in our catalogue. The one-half per cent. to be allowed only in case the sales exceed one hundred and twelve thousand dollars ($112,000), against the highest amount of salary and expense guarantied. Should the said C. W. Biest's sales fall below one hundred thousand dollars ($100,000), then this one-half per cent. allowance is to be allowed him only if the amount of commissions that would be due him on a five (5) per cent. basis exceeds the compensation heretofore guarantied to the said C. W. Biest; otherwise all cuts in prices, allowances, etc., etc., to be charged to the said C. W. Biest. It is further agreed that the said Ver Steeg-Grant Shoe Co. give said C. W. Biest credit for all duplicate orders filled by us from his customers during each season ending April 1st and October 1st. Said Ver Steeg-Grant Shoe Co., however, agrees to give the said C. W. Biest credit for such mail orders as may come from his customers for the two seasons following the season in which he actually sold such customer on the road, and while in the employ of the Ver Steeg-Grant Shoe Co., on conditions that proper efforts shall have been made by said C. W. Biest, or his helper, in soliciting orders from said customer. This also applies to all customers sold by him two seasons ago. New accounts brought into the store by street men or our neighbors not to be included (only after having been sold by him first or next trip). Only on such accounts (in the territory agreed upon) as are sold by said C. W. Biest on the road can credit be claimed. It is further agreed that no credit be claimed by said C. W. Biest for orders not accepted, not shipped, or not paid for, or where cost of collection be five (5) per cent. or over. If the said C. W. Biest's compensation, figured upon a five (5) per cent. basis, as per above contract, exceed the salary and expenses as guarantied, the said Ver Steeg-Grant Shoe Co. agrees to pay him such excess. It is further agreed that the Ver Steeg-Grant Shoe Co. allow the said C. W. Biest one (1) per cent, additional commission on all goods sold to the Famous Shoe Co., being located in East St. Louis, Ill., and that this one (1) per cent., additional commissions will also apply to any store the said C. W. Biest may become financially interested in, and which we may jointly agree to. It is further agreed that said Ver Steeg-Grant Shoe Co. pay the said C. W. Biest commission only on actual sales of rubber goods, and the said Ver Steeg-Grant Shoe Co. reserve the privilege of sending a special rubber salesman to said towns, and on which sales said C. W. Biest can claim no commission. It is further agreed that the said Ver Steeg-Grant Shoe Co. will allow C. W. Biest access to the ledgers twice a year, in checking up his list of sales. Signed in duplicate this 5th day of February, 1900. Ver Steeg-Grant Shoe Co., per W. B. Ver Steeg, Sec'y."

A dispute having arisen between the parties in regard to the retention by the plaintiff of Frank Hahn, the helper provided in the foregoing contract, plaintiff sent in the checks for his sample trunks on the 2d day of April, 1900, accompanied by the following letter: "Saint Louis, April 2, 1900. Ver Steeg Shoe Co., City — Gentlemen: As my contract with your company has been broken by the action of your president, Mr. Ver Steeg, in discharging me and refusing to recognize said contract, I herewith hand you my checks for said...