Clayton Brokerage Co. of St. Louis, Inc. v. Raleigh

Decision Date04 September 1984
Docket NumberNo. 47943,47943
Citation679 S.W.2d 376
PartiesCLAYTON BROKERAGE COMPANY OF ST. LOUIS, INC., Plaintiff-Respondent, v. Ray "Skip" RALEIGH, Defendant-Appellant.
CourtMissouri Court of Appeals

Jay G. Newquist, St. Louis, for defendant-appellant.

Burton Newman, Clayton, for plaintiff-respondent.

GAERTNER, Presiding Judge.

Defendant appeals from the entry of summary judgment in favor of plaintiff on its claim based upon breach of contract. Defendant was employed by plaintiff as a commodities broker from April 20, 1978, until October 29, 1982. Paragraph seven of his written contract of employment provided that he was "to be responsible, and to promptly reimburse Clayton for the payment of deficits in customer's accounts handled by Employee." Defendant also signed a memorandum acknowledging his understanding that he would be held responsible for all deficit accounts of his customers as well as for errors of omission or commission on his part. A deficit in the amount of $29,672.50 developed in account number 94299, an account handled by defendant. Plaintiff made demand upon defendant for reimbursement for this deficit but defendant refused payment. Defendant was entitled to credit for escrowed commissions in the amount of $9,498.17.

These facts are established without contradiction by defendant's responses to plaintiff's request for admissions and by affidavits in support of and in opposition to plaintiff's motion for summary judgment. 1

On appeal defendant contends the judgment entered by the trial court is not a final appealable judgment because it failed to dispose of Count II of plaintiff's petition and of defendant's counterclaim. Count II of the petition sought recovery of the same amount based upon defendant's allegedly negligent handling of account number 94299. The two counts are obviously mutually exclusive alternatives joined pursuant to Rule 55.10. The finding of the trial court on Count I necessarily precludes any recovery on Count II. "Where the disposition of one count and the entry of a general judgment thereon operates to settle all questions, eliminate all issues as between the parties and preclude a recovery on all other counts, there is a final judgment for purposes of appeal." Hayes v. Cardwell, 575 S.W.2d 816, 822 (Mo.App.1978) citing J.G. Jackson Association v. Mosley, 308 S.W.2d 774, 776 (Mo.App.1958).

Defendant further contends the judgment is not final because the court did not address his counterclaim. A judgment which carries with it an inherent finding upon a counterclaim will constitute a final judgment even though the counterclaim has not been expressly mentioned. Reynolds v. Briarwood Development Co., Inc., 662 S.W.2d 905, 906 (Mo.App.1983). Here, the defendant's counterclaim for escrowed commissions was included in the court's judgment. The trial court credited defendant for commissions due him as an offset. Thus, although the word "counterclaim" was not used, the trial court's order took defendant's claim into account and effectively disposed thereof.

Next defendant contends a material fact remains in dispute because the employment contract is ambiguous when viewed in the light of custom and usage and the parties' own interpretation thereof. He argues that an ambiguity arises because paragraph six of the employment contract requires an employee to reimburse the employer for losses resulting from errors of omission or commission, while paragraph seven requires reimbursement for any deficit in a customer's account. Defendant relies upon the rule of contractual interpretation that specific words take precedence over general words. This reliance is misplaced as the rule applies only where there is an inconsistency or ambiguity in the language of the agreement. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). In other words, the general rules of construction may not be used to create an inconsistency or ambiguity where none exists. There is nothing contradictory or inconsistent between a provision requiring reimbursement for errors of omission or commission and another requiring reimbursement for any deficit no matter how caused. They are separate, distinct, and independent provisions.

The absence of ambiguity also renders it unnecessary and improper to look to the custom and usage of the industry as defendant urges us to do. The intention of the parties is clear from the unambiguous language of the contract. It is only when ambiguity exists that a resort to extrinsic evidence is in order to show intent. Grantham v. Rockhurst University, 563 S.W.2d 147, 150 (Mo.App.1978). Indeed, were we to look outside the four corners of the contract, we would find the memorandum signed by defendant acknowledging his understanding of the two-fold nature of his potential liability to his employer to be destructive of the argument ...

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  • Custom Hardware Eng'g & Consulting, Inc. v. Dowell
    • United States
    • U.S. District Court — Eastern District of Missouri
    • January 23, 2013
    ...by virtue of long continued course of conduct strictly to conduct between the parties themselves. Clayton Brokerage Co. of St. Louis, Inc. v. Raleigh, 679 S.W.2d 376, 379 (Mo.App. E.D.1984). Accordingly, the Declaration of John Dowell, tendered solely in support of this argument, sets out i......
  • Union Center Redevelopment Corp. v. Leslie, 52188
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    • June 16, 1987
    ...a court may not look beyond the terms of the contract itself to determine the right of the parties. Clayton Brokerage Company of St. Louis, Inc. v. Raleigh, 679 S.W.2d 376 (Mo.App.1984). If the parties had a different intention than the one expressed in the lease they certainly would have i......
  • Moore v. Seabaugh
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    • Missouri Court of Appeals
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    ...rules of construction may not be used to create an inconsistency or ambiguity where none exists." Clayton Brokerage Co. of St. Louis, Inc. v. Raleigh, 679 S.W.2d 376 (Mo.App.E.D.1984). "While the construction the parties themselves place upon an agreement is of considerable significance in ......
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