Culkin v. Neiman-Marcus Co.

• Decision Date: 02 February 1962
• Docket Number: No. 16286,NEIMAN-MARCUS,16286
• Citation: 354 S.W.2d 397
• Parties: C. Walter CULKIN, Appellant, v.COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 397

354 S.W.2d 397

C. Walter CULKIN, Appellant, v. NEIMAN-MARCUS COMPANY, Appellee.

No. 16286.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 2, 1962.

Rehearing Denied March 2, 1962.

Esir Tobolowsky, Dallas, for appellant.

Thompson, Knight, Wright & Simmons, Morris Harrell and David S. Kidder, Dallas, for appellee.

BOYD, Justice.

C. Walter Culkin sued Neiman-Marcus Company for $2,700.00 alleged to be owing as salary. From a judgment for Neiman-Marcus Company upon instructed verdict Culkin appeals.

Appellant was the only witness, and he testified by deposition. According to his testimony, at the time the negotiations with appellee began, he had for twenty-six years been a hat salesman or manager of hat departments for concerns in New York City; in July, 1954, Edward Marcus, Vice President of appelle, contacted him and offered him a job. As a result of his being contacted by Marcus, appellant telephoned Art Fekety, appellee's buyer of men's furnishings at appellee's buying office in New York, and after several telephone conversations and one personal interview, 'it was left that he would contact me.'

On August 27, 1954, Fekety wrote the following letter to appellant:

'I have just finished discussing with our Personnel Director, Miss Mary Lloyd, the possibility of your coming down to work for us in our Men's Hat Department.

'When I saw you in New York I explained to you that when I came to Dallas, four and a half years ago, our previous year's hat business amounted to $80,000. and in the first year that I was here, just by virtue of having someone in the department who knew and understood the hat business, I built the volume up to $120,000.

'In the past four years our total man's business has increased considerably but since I have gotten out of the hat department the business has slipped back to where it was when I came here, simply because we have had no one in the department who has had the experience or the know-how. I can see no reason why someone like you couldn't come in and increase it to at least the same size as I did in that first year.

'All of the furnishings' men * * * of which there are eleven * * * are allowed to sell hats but I feel that out of the $120,000. someone who was in the department all the time would sell approximately $50,000. in a year. We pay 7% commission on hat sales which means that for sales of $50,000. one would make $350. in a year's time. In addition to this, for the responsibility of keeping the department in shape, keeping stock records, reordering staples, assisting me in buying hats, and also assisting our furnishings' men in selling the hats, we would be willing to pay you $300. per month. This would bring your total year's income up to $7100. This, of course, could be higher by an increased hat business and at the present time we feel that our that department has a potential of $200,000.

'The time will come, we feel sure, when the hat department will be moved to the third floor, clothing department. At the time this is done whoever is in charge of the department will, with one or two assistants, do all the hat selling. This, of course, would increase his commission.

'Should you decide to accept this offer we will allow you $600. toward your moving expenses.

'I hope that you will consider this offer favorably as I know you will be able to do the type job which will prove beneficial to both Neiman-Marcus Co. and yourself.'

Appellant accepted the offer contained in the letter. At that time he was employed as a hat salesman by Brooks Brothers in New York. He gave up his job and his apartment and moved his family to Dallas, where he rented an apartment and had his furniture shipped and moved in. Appellee paid $600.00 on his moving expense. He reported for work on September 13, 1954, 'the date specified by Mr. Fekety.' After a two-week training period he performed the duties mentioned in Fekety's letter. He was paid $300.00 per month, in addition to seven per cent of his sales, until February 1, 1957. His earnings in 1955 were $7,988.00; in 1956, they were $8,435.00; in 1957 his earnings were $6,803.00 when for his non-selling duties he was paid only $150.00 per month for the last eleven months.

No one ever told appellant that his services were unsatisfactory. He never agreed to accept $150.00 per month instead of $300.00. He never agreed to any change in the original contract of employment. In January, 1957, he was called into the office of Miss Mary Lloyd, appellee's personnel director, and was informed by her that his non-selling salary would be reduced from $300.00 per month to $150.00 beginning February 1, 1957. Thereafter, he was paid, and accepted, $150,00 per month. He continued to perform the same duties as from the beginning. He testified: Q. 'It is true, isn't it, that you did not make a claim upon Neiman-Marcus for back salary that you claim was owed you as a result of reduction of the non-selling salary from $300.00 to $150.00 per month until your resignation on July 30th, 1958?' A. 'No; it is not true. I did not make a formal claim but I did object to Mr. Edward Marcus, Vice President, and he told me to sit tight and he would take care of it for me.' Appellant voluntarily terminated his employment on July 30, 1958.

In response to a letter written to appellee by appellant's attorney on July 30, 1958, the response being signed by Norman W. Bramley, Vice President-Treasurer, appellee said: '* * * we are not aware of any liability to Mr. C. Walter Culkin. Our records indicate that Mr. Culkin resigned from our employ of his own accord, effective July 30, 1958, and all amounts due him were paid to that date. Neiman-Marcus Company does not make and never has made any contractual agreements with any of its employees or executives, and Mr. Culkin was no exception to this policy. * * *'

Appellant asks reversal on the ground that jury issues were raised. Appellee denied there was ever an enforceable contract for employment; but, if so, it contends: (1) the duration of the contract was at most from month to month; (2) appellant accepted a modification of the contract, reducing his...