C. H. Robinson Co. v. Frissell

• Decision Date: 07 November 1939
• Docket Number: No. 24690.,24690.
• Citation: 132 S.W.2d 1049
• Court: Missouri Court of Appeals
• Parties: C. H. ROBINSON CO. v. FRISSELL.

132 S.W.2d 1049

C. H. ROBINSON CO. v. FRISSELL.

No. 24690.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be reported in State Reports."

Action on note by C. H. Robinson Company against Charles T. Frissell, wherein the defendant filed a counterclaim for services. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded, with directions.

John F. Gillespie, of St. Louis, for appellant.

Anderson, Gilbert, Wolfort, Allen & Bierman, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a promissory note, with a counterclaim for services.

The note pleaded is for $1,521.30. The counterclaim is in two counts. The first is based on a contract, and the second on quantum meruit.

The trial resulted in a verdict in favor of plaintiff on its cause of action for $1,785.74, including interest, in favor of defendant on the first count of his counterclaim for $97.59, including interest, and in favor of plaintiff on the second count of the counterclaim, and judgment was accordingly given in favor of plaintiff for $1,688.15. Defendant appeals.

There was no dispute at the trial as to the amount due on the promissory note, and the verdict of the jury on the plaintiff's cause of action was for the amount admitted to be due and pursuant to a peremptory instruction.

Defendant's evidence shows that plaintiff was engaged in the carload fruit and vegetable brokerage business, having branches in several cities, including St. Louis, and that by an oral contract defendant was employed by plaintiff as the manager of the St. Louis branch from January 1, 1934, to November 30, 1934.

That it was agreed in said contract that plaintiff would pay defendant a monthly salary of $350, and as additional compensation or bonus a share of the earnings of the St. Louis branch during defendant's employment, as follows:

On the first $1,000 of the earnings of the company in excess of the sum of $2,000 plaintiff was to receive $800 and defendant $200; on the next $1,000 plaintiff was to receive $700 and defendant $300; on the next $1,000 plaintiff was to receive $600 and defendant $400; on the next $1,000 plaintiff was to receive $600 and defendant $400; and all earnings above that sum were to be divided equally between plaintiff and defendant.

That for the purpose of determining defendant's additional compensation or bonus it was agreed that said earnings were to be determined by deducting from the gross receipts of the business of the St. Louis branch the expenses of doing business, but not deducting the federal and state income taxes nor the share of defendant in the earnings to be paid as additional compensation or bonus.

That the earnings of plaintiff's St. Louis branch, during the period from January 1, 1934, to November 30, 1934, amounted to $7,146.65 before the deduction of federal and state income taxes and defendant's additional compensation or bonus; that defendant's bonus if computed according to the basis claimed by defendant, that is, without deducting as expenses federal and state income taxes and the share of defendant in the earnings, would amount to $1,873.82; that plaintiff had paid defendant in addition to the agreed salary of $350 a month at various times during 1934 the total sum of $900 on account of said additional compensation or bonus for the year 1934; so that under defendant's contention there was still due defendant the sum of $973.82.

Plaintiff's evidence shows that the agreement of the parties was that defendant's additional compensation or bonus should be computed upon the earnings of the St. Louis branch remaining after the deduction of all expenses of doing business including in such deductions federal and state income taxes and defendant's additional compensation or bonus, so that under plaintiff's contention the amount remaining due defendant as additional compensation or bonus was $87.98.

Defendant assigns error for the giving of plaintiff's instruction No. 5, as follows: "The Court instructs the jury that if you find and believe from the evidence that plaintiff entered into a contract with defendant whereby plaintiff agreed to pay defendant $350 per month as salary during the year 1934, if you so find, and in addition thereto a bonus based on a percentage of the net earnings of the St. Louis branch of plaintiff company, if you so find, and that by net earnings it was agreed was meant the earnings of the St. Louis branch of plaintiff company after the deduction of all expenses, including estimated income taxes to the State of Missouri, and to the United States, and of the amount to be paid to defendant as a bonus, if you so find, then the Court instructs you that $7,146.65 represents the earnings before the deduction of income taxes to the State of Missouri, and to the United States, and before the deduction of bonus to defendant, and that if you find the foregoing to be the agreement between the plaintiff and defendant as to the meaning of the term net earnings, then defendant's bonus would amount to the sum of $987.98 for the year 1934, that it is further admitted by defendant that he has already received from plaintiff the sum of $900 to be...