Brader v. Rehm

• Decision Date: 21 April 1959
• Docket Number: No. 30156,30156
• Citation: 323 S.W.2d 392
• Parties: Clara A. BRADER, Lawful Representative of Ben Brader, Deceased (Plaintiff), Respondent, v. Donald O. REHM (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 392

323 S.W.2d 392

Clara A. BRADER, Lawful Representative of Ben Brader Deceased (Plaintiff), Respondent, v. Donald O. REHM (Defendant), Appellant.

No. 30156.

St. Louis Court of Appeals, Missouri.

April 21, 1959.

Flynn, Parker & Badaracco, St. Louis, for appellant.

Henry Ebenhoh, Walter S. Berkman, St. Louis, for respondent.

DOERNER, Commissioner.

This suit was filed by Ben Brader, a former employee of the defendant, to recover commissions of $15,000 claimed to be due him on certain sales. From an adverse judgment against him of $5,000, rendered in the Circuit Court of St. Louis County, the defendant has appealed to this court. After the appeal had been taken Mr. Brader died and his widow was formally substituted as his lawful representative.

Defendant is a distributor of bicycles, wheel goods, accessories and parts. His place of business is located in the City of St. Louis, and the operation was carried on under the name of Guaranty Cycle Company. Brader entered defendant's employ as a salesman on June 1, 1949, and continued as such until August 23, 1956. He traveled at certain times in southern Illinois, and at other times in certain parts of Missouri.

The primary issue in dispute between the parties was the term of Brader's employment. According to Brader, he was employed strictly on a commission basis, and was to receive a commission not only on the merchandise he personally sold, but also on all orders which the customers he called upon mailed or telephoned in to defendant. On his part, defendant denied that he had agreed to pay Brader any commissions on orders received by mail or telephone, and readily admitted that, in general, no commissions had been paid to Brader on such orders.

Contingent upon the determination of the first issue, the second issue in controversy was the amount of the commissions to which Brader was entitled. The issue of fact as to the terms of the agreement was submitted to the jury for its determination, and by its verdict the jury found the contract of employment to be as claimed by Brader. No complaint of error is made as to that part of the case.

Defendant's first assignment of error relates to the defense of account stated, first raised in his answer and subsequently renewed at all appropriate times during the trial. It is undisputed that throughout Brader's employment he was given two checks every two weeks, one for the commissions which he had earned on orders taken by him during that period, and the other for his traveling expenses. At the time Brader received each check for his compensation he was also given a detailed account sheet by defendant headed 'Ben Brader Commission on sales _____ through _____,' (the blanks containing the appropriate dates), and giving the name of the customer, the invoice number, its date, the nature of the customer's purchases broken down under the classification of 'tires and tubes', 'wheel goods', 'bicycles', and 'parts and accessories', the rate of commission applicable to each classification, the total amount sold of each category of merchandise, the amount of commission on each classification, and the total of the commissions due Brader, the amount of which corresponded with the check for compensation concurrently given him.

Brader admitted that he accepted such commission checks and cashed them, but testified that he had no way of knowing when his customers mailed or telephoned in orders to defendant, and that it was not until June or July, 1952, that he discovered from some of his customers that they had sent orders to defendant on which commissions had not been paid. Brader stated that he thought there might have been an oversight on defendant's part, and said nothing about the matter until December, 1952, when he asked the defendant about it. Defendant then admitted, according to Brader, that he had some commissions coming and stated that he would ascertain the amount and pay him. Thereafter, Brader testified, he periodically broached defendant about the subject and was informed, in substance, that defendant had been too busy to check on the matter, and was also assured that he would be paid what was due him. Brader continued to work for defendant, he stated, because defendant always promised to pay him and he took defendant at his word and thought he eventually would be paid.

It is defendant's contention that Brader's actions in accepting the detailed account sheets and accompanying checks, and cashing the latter, established an account stated for each two-week period, as a matter of law. The authorities do not sustain defendant's position. As this court said in Concrete, Inc. v. Curry, Mo.App., 278 S.W.2d 6, 9:

'An account stated is created when the parties, having had financial transactions between them, arrive at an agreement as to the balance due and the party debtor acknowledges his obligation to the party creditor and promises to pay. 1 C.J.S. Account Stated Sec. 1, p. 693; Gerstner v. Lithocraft Studios, Inc., Mo.App., 258 S.W.2d 250; Powell v. Pacific Railroad, 65 Mo. 658; Conkling v. Henry Quellmalz Lumber & Mfg. Co., Mo.App., 20 S.W.2d 564; Bloss v. Aurora Milling Co., 207 Mo.App. 402, 229 S.W. 833.

'A balance must be reached and no matters left open for future adjustment before an account stated arises. The action is certainly never available where there is an express understanding that certain matters are left for future adjustment. Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214; Pickel v. St. Louis Chamber of Commerce Ass'n, 10 Mo.App. 191; Quint v. LothHoffman Clothing Co., 207 Mo.App. 391, 233 S.W. 92; Conkling v. Henry Quellmalz Lumber & Mfg. Co., supra.'

In view of Brader's foregoing testimony, it is clear that by the acceptance by Brader of the account sheets and checks no account stated was created as a matter of law, for no balance was struck and no sum due agreed upon, and the trial court properly overruled defendant's motion for a directed verdict.

The conflict in the testimony of Brader and the defendant presented an issue of fact as to whether or not Brader had accepted the account sheets as a settlement of the accounts, and agreed to them, so as to create an account stated. That issue was properly submitted to the jury by Instruction No. 3. Defendant argues, in his fourth assignment, that the evidence compelled a finding in his favor. But it was the function of the jury to resolve the divergence in the evidence. And it is apparent from its verdict that the jury found the issue in favor of Brader.

Defendant's second assignment of error concerns Instruction No. 1--Brader's verdict-directing instruction. Defendant complains that the instruction permitted the jury to find that plaintiff was entitled to commissions on merchandise sold to customers 'in the localities described in evidence,' when there were localities mentioned in the evidence in which Brader was not permitted to solicit orders or entitled to receive commissions. A second criticism is that the instruction did not limit the jury's consideration to the period subsequent to October, 1951, the trial court having ruled that the statute of limitations barred recovery of any commissions earned prior to that date. And, lastly, defendant argues that the instruction gave the jury a roving commission to determine the amount of damages because no reference was made to the agreed rates of commissions to be paid on the various classifications of merchandise sold. It will be noted...