Dyer v. Sterett

• Decision Date: 27 February 1952
• Docket Number: No. 12379,12379
• Parties: DYER v. STERETT.
• Court: Texas Court of Appeals

Page 234

248 S.W.2d 234

DYER v. STERETT.

No. 12379.

Court of Civil Appeals of Texas, San Antonio.

Feb. 27, 1952.

Rehearing Denied April 2, 1952.

Phillips, Horton & Williamson, and Fischer, Wood, Burney & Glass, all of Corpus Christi, L. Hamilton, Lowe, Austin, for appellant.

Tarlton & Hale and Boone, Davis & Cox, all of Corpus Christi, for appellee.

NORVELL, Justice.

This is an appeal from a judgment rendered non obstante veredicto, providing that appellant, G. C. Dyer, plaintiff below, take nothing against the defendant, W. G. Sterett. The parties will be designated as in the trial court or by name. Plaintiff's contention is that this Court should render judgment upon the findings of the jury.

The suit is one for compensation under an oral contract of employment and the main controversy relates to the terms of the agreement. It was Sterett's contention that Dyer was employed upon a salary basis, while Dyer contends that he was to be paid a sum equal to half the profits of the business, with a drawing account to he charged against the profits if any were realized.

This suit was filed on September 26, 1947. In October, 1948, Sterett moved the court for a separate trial of issues under Rule 174, Texas Rules of Civil Procedure. This motion was granted by the presiding judge, the Hon. Jack Pope, now a member of this Court, and the following order entered bearing date of February 21, 1949:

'It is therefore here now ordered, adjudged and decreed by the Court that there shall first be a separate trial of the issues as to whether plaintiff is entitled to share in the profits of defendant's business, and as to the period or periods during which plaintiff was entitled to share in the profits, if any, and as to the manner in which such profits should be determined, and as to plaintiff's right to an accounting; and it is further ordered that after said issues, and any issues reasonably incidental thereto, have first been tried and finally determined, then if it be thereby established that plaintiff is entitled to an accounting then it shall be determined whether an auditor shall be appointed and a separate trial thereafter shall be had for the purpose of determining the amount of money, if any, to which plaintiff is entitled.'

No objection was made to the entry of this order and there is no issue raised as to its correctness upon this appeal.

The question relating to Dyer's rights to share in the profits was submitted by means of four special issues which, together with the answers thereto, are as follows:

Special Issue No. 1: Do you find from a preponderance of the evidence that during the month of March, 1945, plaintiff and defendant entered into an agreement by which they were to split the profits earned in the business in question? Answer: Yes.

Special Issue No. 2: Do you find from a preponderance of the evidence that plaintiff, G. C. Dyer, performed his obligations under said agreement, if any? Answer: Yes.

Special Issue No. 3: Do you find from a preponderance of the evidence that when plaintiff was paid $222.00 in December, 1945, he accepted the same in full payment for all sums due him by defendant to that date? Answer: No.

Special Issue No. 4: Do you find from a preponderance of the evidence that when plaintiff was paid $1,000.00 in December, 1946, he accepted same in full payment for all sums due him by defendant to that date? Answer: No.

On October 21, 1949, an interlocutory judgment was rendered upon the jury's verdict awarding to Dyer one-half on the net profits of the business from March 1, 1945, to August 1, 1947. An accounting was ordered to determine the amount due to Dyer under the judgment. The attempted appeal from the interlocutory order was dismissed by this Court. Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, wr. ref.

On April 17, 1951, Sterett filed an audit which was made the basis of a motion for judgment by the plaintiff. Defendant renewed a motion for judgment non obstante veredicto therefore overruled by Judge Pope. These motions were heard by Hon. Harry M. Carroll, Judge of the 105th District Court, acting as Presiding Judge of the 94th District Court. Judge Carroll, after considering further evidence as well as that introduced prior to the entry of the interlocutory decree, in transcribed form, concluded that the jury's findings had no support in the testimony and should be set aside. He therefore rendered judgment non obstante veredicto in favor of the defendant on September 4, 1951.

We have concluded that the trial court erred in granting judgment non obstante veredicto. The evidence does not disclose an agreement so indefinite in terms that it can not be enforced, and there is some evidence supporting the jury's findings.

The primary and only substantial objection to the manner and method of submitting the case to the jury was that it failed to inquire 'as to whether there was a meeting of the minds of the parties upon an agreement to pay plaintiff fifty per cent of the profits as distinguished from splitting the profits in some other manner.'

An agreement 'to split the profits earned in the business' (to quote the wording of Special Issue No. 1) means, in the absence of qualification, an agreement to split the profits equally. Johnston v. Ballard, 83 Tex. 486, 18 S.W. 686; Ferguson v. Conklin, Tex.Civ.App., 51 S.W.2d 622; Graves v. White, 43 Colo. 131, 95 P. 347, 348. To split means to divide. Webster's New International Dictionary, 2d Ed. In the case last cited the same contention put forth by Sterett here was discussed by the Colorado Supreme Court. We quote from the opinion:

'Appellants' contention is thus stated in their brief: 'It is true that the plaintiff testified that one of the defendants said he would divide the commission. That statement is denied. Conceding that he said it, for the purpose of this argument, there is still no contract. If that statement were made, the one making it may have had in mind that he would give him 1 per cent. of the proceeds of the transaction, while the other person to whom it was said may have had in mind that it would be 50 per cent. A promise to divide the commission did not necessarily mean to give him half of it. It is so indefinite that no one can tell just what the statement does mean. If the defendant Ahrens had paid the plaintiff one dollar of the proceeds, he would have been carrying out the promise to divide commissions. What was said by these parties was not sufficient to constitute a contract that will support a recovery.' We cannot agree with this contention. 'Divide' is thus defined in the Standard Dictionary: 'To sever into two parts; to cut or part into several or many pieces.' We think that by common usage the common acceptation and definition of the word 'divide,' unqualified by other words, when used by and between two contracting parties, limits the severance or partition to two equal parts. This is the construction placed upon 'divide' by the court below, which is approved.'

Agreements 'to split' profits, commissions or properties are not uncommon and we are unwilling to hold that such agreements are too indefinite for legal recognition.

There is some evidence supporting an agreement to split profits. King v. King, Tex.Sup., 244 S.W.2d 660; Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982. Dyer testified as follows:

'Q. State what was said at that time, about March, 1945, by you and Mr. Sterett about your going to work for him. A. As I have stated before, we had discussed it somewhat and I went on out and talked to him this time, and he told me that if I wanted to come over with him, he would give me a drawing account of $250.00 a month, five and a half cents a mile I was to use; I owned the car, and also travel expense and entertainment, which would even-would all be paid, and split the profits, which I took to be 50 per cent.

'Q. What did you say to that? A. I said, 'That is all right. That suits me,' and I walked on out. I says, 'I will be there on the 15th of April to go to work.'

As an alternative proposition, Sterett attacks the jury's finding as being against the overwhelming preponderance of the evidence. Rule 324. This raises a question of fact and necessitates some review of the evidence.

Defendants' brief contains an able and persuasive argument with reference to this contention. A number of points, which have some bearing upon the problem, have no record basis as separate propositions, however. The primary issue made by the pleadings was the conflict between Dyer's contention that he was to share in the profits and Sterett's contention that Dyer was employed upon a salary basis. No request was made for an affirmative presentation of Sterett's contention, Rice v. Thompson, Tex.Civ.App., 239 S.W.2d 137, nor was an issue submitted upon the hypothesis suggested in the brief, that Dyer's recovery of profits should be restricted to business actually produced by him. Likewise, there was no request for the submission of an estoppel theory based upon the contention that an interpretation placed by one of the parties upon the agreement had been acquiesced in by the other. Humble Oil and Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355. No estoppel appears as a matter of law.

Essentially and briefly, defendant's argument is that under all the facts and circumstances disclosed by the record, the contention that Sterett had agreed to divide the profits of the business equally with Dyer is so preposterous and unreasonable that only a prejudiced mind would accept it.

It appears that both Sterett and Dyer were at one time employed by the Westinghouse Electric Company. Sterett served in an executive capacity and Dyer was a salesman under him.

Sterett left the employ of Westinghouse in 1944 to set up his own electrical supply house at Corpus Christi. He sold his home in Dallas to provide the capital to open the business, and he and his wife worked together in order to get the same...