Dickes v. Bookman

• Decision Date: 01 June 1926
• Docket Number: No. 19421.,19421.
• Citation: 285 S.W. 546
• Parties: DICKES v. BOOKMAN.
• Court: Missouri Court of Appeals

285 S.W. 546

DICKES v. BOOKMAN.

No. 19421.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 25, 1920.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Kathryn Dickes against Max Bookman. Judgment for plaintiff was entered in the circuit court on a trial de novo on appeal from justice of the peace, and defendant appeals. Reversed and remanded.

William Zachritz and Harmon J. Bliss, both of St. Louis, for appellant.

Harry S. Gleick, of St. Louis, for respondent.

BECKER, J.

This cause originated before a justice of the peace, plaintiff seeking to recover damages for an alleged breach of contract of employment. In due course the cause was tried de novo on appeal in the circuit court, and a judgment resulted for plaintiff for $450, and defendant appeals.

Plaintiff's petition alleges that defendant, on or about the 8th day of July, 1922, employed her for a period of six months from that date under the following terms:

"Defendant agreed to pay plaintiff a salary of $35 per week and a bonus of 1 per cent. of the profits of defendant's business. Plaintiff alleges that plaintiff worked for defendant and in every way performed her duties as defendant's employee, but that defendant, without cause, discharged plaintiff, all to plaintiff's damage in the sum of $450."

Plaintiff's petition contains what has been treated as a second count; however, in light of our action in the case, we need not refer to it in detail.

There is no controversy but that plaintiff entered the employ of defendant early in January, 1922, and that she remained in his employ until the early part of November of that year; that practically during all of that period of time she was paid a salary of $35 per week; that the defendant, at the end of the first six months, paid or gave her a check for $127.08, which plaintiff says was, according to her contract of employment, 1 per cent. of the net sales for the period of January to the end of July, 1922, but, according to defendant's version, the said check was given to the plaintiff, not under the terms of her employment, but merely as a bonus, because the business in the first half year "was good."

According to plaintiff's testimony, the defendant, the first week in July, re-employed her for a period of six months at a salary of $35 per week and a bonus of 1 per cent. of the sales for the rest of the year; that she continued to work for the defendant until November 11th, during which time she performed all of the duties and services required of her under her terms of employment, but that on November 11th defendant discharged her, stating he discharged her because he had learned that she intended to go into business for herself in the spring; that at the time of her discharge she was paid the amount that was due her at $35 per week, but...