Burch v. Conklin

• Decision Date: 20 April 1918
• Docket Number: No. 2170.,2170.
• Parties: BURCH v. CONKLIN.
• Court: Missouri Court of Appeals

204 S.W. 47

BURCH v. CONKLIN.

No. 2170.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Rehearing Denied June 27, 1918.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Action by L. L. Burch against R. R. Conklin. From a judgment for plaintiff, defendant appeals. Affirmed.

R. A. Mooneyham, of Carthage, and H. W. Currey, of Joplin, for appellant. Howard Gray, of Carthage, and A. E. Spencer, D. A. Keener, and Geo. J. Gray stun, all of Joplin, for respondent.

STURGIS, P. J.

The plaintiff recovered judgment in the Jasper county circuit court for $1,000 damages for that defendant wrongfully and without just cause discharged him from defendant's employ before the expiration of the employment contract. It is not disputed that defendant by written agreement on June 1, 1916, employed plaintiff for a year at a salary of $3,600 to superintend some four or five mines owned and being operated by defendant in Jasper county; that plaintiff accepted said employment, resigning his position as deputy state mine inspector in order to do so; that he was thereafter discharged by defendant on September 1, 1916. The sole controversy here relates to defendant's having a just cause for discharging plaintiff. While some other grounds justifying defendant's action are mentioned in the answer and evidence, only one is pressed on our attention, viz. that plaintiff betrayed defendant's confidence and violated his obligation of fidelity to defendant in secretly bargaining for a commission for services from the Barnett Mining Company, or its manager, in connection with the sale by that company of certain mining property to the defendant.

The record discloses some rather remarkable facts to one not versed in high finance. The plaintiff was a young man 32 years of age, having spent all his life in the mining district and in work connected with raining. His position as deputy mine inspector had made him familiar with mines and mine operations. His salary as mine inspector was $1,800 per year. In the early part of 1916 the defendant, a resident of New York and evidently a man of large means, but as is claimed without mining experience, commenced acquiring property and operating mines in the southwest Missouri mining district. About February 21, 1916, defendant came to Joplin and formed plaintiff's acquaintance. The defendant had previously sent cr brought with him one Jess Briegal, late of Chieago and also without much mining experience, who thereafter became defendant's alter ego, with large powers and at a large salary, in buying mines and conducting mining operations. The defendant returned to New York and thereafter visited the mining district only at intervals. The defendant on this occasion consulted with and employed plaintiff to obtain for him statistical information as to the various mines in the district and particularly the per cent. of high grade and low grade ores. A blank form or report to be given on live mines was drawn up and printed, and plaintiff's work was to get these filled out and returned. This was usually done by the superintendent of the mine, and when filled out gave something of the history of the mine, its capacity, production, number of employes, cost of operation, value of products, etc. About this time defendant also began negotiating for and purchasing mining properties on a rather large scale; his purpose being, as he said, to buy mines _hat had shown a good past record and were then producing well. He was warned by plaintiff that some such mines might be near exhaustion and of comparatively little value, but this fact did not seem to materially interest him. Plaintiff's work in gathering the statistical reports did not prove satisfactory to either party, and plaintiff worked for defendant in this capacity for less than three weeks from about February 23d to March 14th.

About the date last mentioned the defendant consummated the purchase of a mining property designated as "Barnett No. 1" for $175,000. This was the second or third mine defendant purchased in the district, and such purchases were made by defendant's man Jess Briegal with the aid of a lawyer, Mr. Scott. The answer charges that plaintiff was guilty of secretly accepting a commission of $2,500 from the vendor for aiding in putting through the sale of the mile, Barnett No. 1, but the weight of the evidence is to the contrary and so the jury fourd. This is one of the mines on which plaintiff had secured for defendant a statistical report, and Jess Briegal says plaintiff recommended it very highly to him. The plaintiff, however, says that it was no part of his work to investigate any mine or verify the report made thereon or to value the same. He disclaims I having anything to do with the sale of this mine to the defendant, and in this he is corroborated by the vendor. Plaintiff also denies and so does the vendor, that plaintiff was paid, promised, or given anything for helping consummate this sale.

The petition also alleged that plaintiff's employment by defendant was ir fact continuous after February 23d, and that the contract of June 1st, which defendant breached by discharging plaintiff on September 1st, was a mere continuation of the first employment. In this respect also the evidence fails, for there is no doubt but that there was a complete termination of the first contract about March 14th or 15th with no intention of either party to resume the sarae at anytime. From the middle of March to June 1st plaintiff was in no way in defendant's employ and was free to deal with him at arm's length. Moreover the employment of plaintiff on June 1st to superintend the physical operation of the mines the defendant had then purchased and was operating was wholly different in character than the first employment.

The allegations of the answer justifying defendant in discharging plaintiff, to the effect that while plaintiff was in defendant's employ he advised defendant in regard to the purchase of the Barnett mine No. 1 and gave incorrect information while and tecause he was trying to induce defendant tc buy said mine in order to earn a commission from the vendor and that same was in part paid him thereafter, is not sustained by the weight of evidence and the jury's finding thereon is final. It is true, however, that plaintiff's own evidence shows that he bargained for a commission to be paid partly to himself on the sale of another mine designated as "Barnett No. 2" from the same vendor defendant; and we may concede that if the self-eonfessed deal was a breach of trust or placed plaintiff without the defendant's knowledge, in a position so that he could not serve defendant in a subsequent new employmen; with disinterestedness and fidelity, then defendant on ascertaining the facts had a right to discharge plaintiff. As said in Shirts v. Overjohn, 60 Mo. 305, 308: "This testimony of the defendant constituted an admission as fully as if it had been embodied in an ar swer."

The facts as to this second deal, according to plaintiff's evidence, which the jury had a right to believe, are that plaintiff's first employment in obtaining mining statistics for defendant had been ended. The sale of the mine Barnett No. 1 was closed, though all the purchase money was not yet paid. The plaintiff had taken no part in that deal except to obtain the statistical report and perhaps express his opinion that same was good property. He had neither received nor been promised anything in connection therewith. That deal had been handled on defendant's behalf by Jess Briegal and Attorney Scott. It is significant, however, as throwing light on the deal subsequently commenced for Barnett No. 2, that defendant's man Jess Briegal and Attorney Scott had bargained for and were paid a commission of 10 per cent. on the purchase price of Barnett No. 1, one-half to each. Not only did defendant know of this, but according to all the evidence he had instructed his alter ego, Jess Briegal, to have the vendor fix the selling price so as to cover this commission of 10 per cent. This same thing was done in the purchase of two or three other mining properties of large value, and it seems to have been defendant's regular course of dealing to have this man Briegal include a commission of 10 per...