Bredel v. Parker-Russell Min. & Mfg. Co.

• Decision Date: 03 December 1929
• Docket Number: No. 20881.,20881.
• Court: Missouri Court of Appeals
• Parties: BREDEL v. PARKER-RUSSELL MIN. & MFG. CO.

21 S.W.2d 932

BREDEL v. PARKER-RUSSELL MIN. & MFG. CO.

No. 20881.

St. Louis Court of Appeals. Missouri.

December 3, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Fred Bredel against the Parker-Russell Mining & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Douglas W. Robert, of St. Louis, for appellant.

Grant & Grant and Robert T. Burch, all of St. Louis, for respondent.

BENNICK, C.

This is an action for the amount alleged to be due and unpaid to plaintiff from defendant under a contract of employment entered into by and between the two on or about January 10, 1924. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,000; and from the judgment rendered, defendant has duly appealed.

Plaintiff alleged in his petition that he was a gas engineer; that on or about January 10, 1924, he was employed in such capacity by defendant; that as a part of the terms of his employment, plaintiff agreed to design and furnish defendant plans for gas ovens, for which defendant agreed to pay plaintiff a sum equal to $2 per 1,000 cubic feet daily capacity of horizontal gas ovens so designed by him, if erected by it; that thereafter, during the year 1924, and pursuant to the terms of his employment, plaintiff designed and furnished for and to defendant a complete set of plans for horizontal gas ovens, to be erected at Kalamazoo, Mich.; that defendant accepted said plans, and erected the ovens; and that the daily capacity thereof was 1,000,000 cubic feet, wherefore plaintiff prayed judgment for the sum of $2,000, with interest.

In its answer, defendant admitted that in the year 1924 it erected a gas plant at Kalamazoo, and that the daily capacity of the ovens was 1,000,000 cubic feet. It thereupon denied each and every allegation in plaintiff's petition contained, and further stated that on January 10, 1918, it had entered into a contract with plaintiff in settlement of a dispute between it and him on account of royalties on ovens then under construction at Vincennes, Ind., and Kalamazoo, Mich.; that it was agreed therein that plaintiff should be paid $2 per 1,000 cubic feet daily capacity of said ovens then under construction; that thereafter said royalties were so paid to plaintiff; that by said contract it was further agreed that plaintiff would furnish defendant detailed plans for the construction of ovens, for which he should be paid the sum of $650 that plaintiff's royalty should be $2 per 1,000 cubic feet daily capacity for every oven built by defendant according to the plans for horizontal and inclined ovens, as well as for vertical ovens; that said contract should remain in force for a period of five years from January 1, 1918; and that all contracts entered into by defendant for the erection of ovens should be subject to said royalty, but that after the expiration of said period, defendant should have the right to continue to build ovens of the aforesaid system without the payment of any royalties. Said contract was attached to the answer, and marked "Exhibit A." Defendant further alleged that by reason of the premises, there was no consideration for any promises that might have been made to plaintiff, or for any further payments of royalty; that there was nothing due from defendant to plaintiff; and that having fully answered, it should be permitted to go hence with its costs.

The reply was in the conventional form.

The evidence disclosed that beginning in 1890, and at irregular intervals thereafter, plaintiff had been employed by defendant as a gas engineer. About the year 1916, during one of such periods of employment, he had designed ovens for installation on jobs at Vincennes, Ind., and Kalamazoo, Mich., and, as was alleged in the answer, a controversy of some sort had arisen between him and defendant relative to his compensation for the work. Finally, on January 10, 1918, a written contract was entered into between the parties, which provided, in substance, that plaintiff should be paid a royalty of $2 per 1,000 cubic feet daily capacity of the ovens so installed; that he should furnish defendant a set of complete and detailed plans for the construction of such ovens, for which he should be paid the sum of $650; that defendant should pay a similar royalty for ovens subsequently built and installed according to the plans and specifications so furnished; and that such agreement should remain in force and effect for a period of five years from and after January 1, 1918, after which, if defendant wished to continue to build ovens "of the aforesaid system," it should have the right to do so without the payment to plaintiff of any royalties.

Plaintiff testified that in the forepart of January, 1924 (which was after the expiration of the five-year period provided for in the contract referred to above), he was again employed by defendant, and that on this occasion the negotiations leading up to his employment were conducted through Mr. Leigh Wickham, vice president and general sales manager of defendant, with whom he had also dealt on the previous occasions when he had entered the company's service. His testimony was that Wickham stated he wished to employ him regularly, and inquired what salary plaintiff would want; that he replied that he would want $250 a month as long as defendant had no definite contract, and after that $300 a month, and a royalty extra remuneration of $2 per 1,000 cubic feet daily capacity for any ovens built according to his new design; and that Wickham announced that "it was O.K." Wickham also advised him at the time that defendant was hoping to obtain a second contract for the installation of ovens at Kalamazoo, Mich.; and in fact the contract was subsequently obtained, and plaintiff designed the ovens which were installed pursuant to it.

The contentions of defendant at the trial were two: First, that under the contract of 1918, it had the right to use the plans for the system of ovens which plaintiff had designed without the payment of any royalty after January 1, 1923, and that consequently the offer of a royalty to plaintiff, if it was made, was without consideration; and, second, that Wickham had no authority from it to make any contracts for royalties.

Without in any wise attempting a discussion of the technicalities entering into the construction of gas ovens, it will suffice to say of the first contention that both plaintiff and Wickham testified that the ovens designed for the second Kalamazoo job were of an essentially and entirely different system than those covered by the contract of January 1, 1918, and many pages in the record are filled with their testimony explaining the details of such differences.

As to the authority of Wickham to bind defendant, it was shown, as we have heretofore stated, that plaintiff's previous dealings had been with him; and, further, that after his last employment, he consulted with Mr. George W. Parker, defendant's president, about his salary, and was told by Parker that he should talk to Wickham, and that "whatever he says is O.K." Wickham himself testified that he was vice president of defendant until the time of the severance of his connections with the company in 1926; that prior to his dealings with plaintiff in 1924, he had suggested to Parker that plaintiff should be employed, and had been told to "go ahead"; and that he had authority both to make contracts for royalty, and to approve bills submitted therefor.

After the contract for the Kalamazoo job was secured, plaintiff prepared a final estimate of the work, the summary of which contained a reference to the royalty which would be due him, and such estimate was used by defendant in arriving at the basis on which it sold the ovens, after it had been checked by other employés of defendant.

On November 16, 1925, after the installation of the ovens at Kalamazoo had been...