Ehrlich v. The AEtna Life Insurance Company

• Decision Date: 23 February 1891
• Citation: 15 S.W. 530,103 Mo. 231
• Parties: Ehrlich v. The AEtna Life Insurance Company, Appellant
• Court: Missouri Supreme Court

15 S.W. 530

103 Mo. 231

Ehrlich v. The AEtna Life Insurance Company, Appellant

Supreme Court of Missouri, First Division

February 23, 1891

October, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed.

G. A Castleman and D. C. Webb for appellant.

(1) The court erred in giving instruction, prayed by defendant, declaring the plaintiff contracted to furnish $ 1,000,000 new insurance in four years, and that it was not a breach of the contract for plaintiff to fail to furnish $ 250,000 new insurance in the first year of said contract. (2) The court erred in refusing the instruction, prayed by defendant, declaring that, under the evidence, the jury could not find that there existed in St. Louis a custom for general agents of insurance companies to take a vacation in the months of July and August. (3) The court erred in refusing instruction, asked by defendant, declaring that, if plaintiff failed to remit to defendant the money collected by him, defendant had a right to revoke said contract. (4) The case was submitted upon the testimony offered upon the case in chief; there was no conflict of testimony, and the three breaches assigned in the foregoing points were conclusively shown. It was, therefore, error for the court to refuse instruction asked by defendant at close of plaintiff's case, in the nature of a demurrer to the evidence. (5) Plaintiff, having pleaded that he absented himself from the business in pursuance of custom, must rest his justification on that plea. Weil v. Posten, 77 Mo. 287; State v. Roberts, 62 Mo. 388; Kuhn v. Weil, 6 Mo.App. 576; S. C., 73 Mo. 213; Nichols v. Larkin, 79 Mo. 264; Murdock v. Brown, 16 Mo.App. 548. A party cannot introduce evidence to contradict the averment of his own pleading. Bank v. Armstrong, 62 Mo. 65; Pullis v. Sims, 34 Mo. 246. (6) Custom cannot be set up to vary or contradict an express stipulation of a contract. Clark's Brown on Usages and Customs, pp. 60, 81, 155, 161, 165, 169, 170, 237, 260. (7) The contract involving one of personal service, plaintiff cannot recover on a quantum meruit. Henson v. Hampton, 31 Mo. 410; Caldwell v. Dickson, 17 Mo. 575; Earp v. Tylor, 73 Mo. 619. Wherever recovery on quantum meruit is permitted it is limited to the price fixed by the contract. Lowe v. Sinclair, 27 Mo. 311; Downey v. Burk, 23 Mo. 228; Helm v. Wilson, 4 Mo. 41; Lee v. Ashbrook, 14 Mo. 378; Lambert v. Hartshorne, 65 Mo. 551.

Noble & Orrick for respondent.

(1) The court did not err in giving instruction 1 for respondent. Ehrlich v. Ins. Co., 88 Mo. 255. (2) Where evidence of custom is given to control the construction of a written instrument, the jury are to determine its effect. Dawson v. Kittle, 4 Hill, 107; Goodyear v. Ogden, 4 Hill, 104; Lewis v. Marshall, 7 Man. & Gr. 729; Hutchinson v. Bowker, 5 Man. & Gr. 535; Nelson v. Hill, 8 M. & W. 806; Phillips on Ev., 408, 420.

Black J. Brace, J., absent.

OPINION

Black, J.

This is a suit based upon a contract executed by the defendant and the plaintiff, and dated September 16, 1880. On the first trial there was a judgment in favor of the plaintiff, which was reversed and the cause remanded by the St. Louis court of appeals.

Under former laws plaintiff appealed from that to this court, and we affirmed the judgment of the court of appeals, disposing of such questions as were then urged in this court on the record before us. The case was again tried on amended pleadings, the trial resulting in a judgment for the plaintiff in the sum of $ 4,991.53, and the defendant, under present laws, appealed directly to this court.

By the terms of the contract defendant appointed the plaintiff as its general agent to procure applications for life insurance throughout this state, Jackson county excepted; to receive premiums upon all policies issued upon such applications; to collect premiums upon renewals of the same, and to collect renewal premiums upon existing policies. For his services, and those of his agents, he was to have commissions on premiums collected, that is to say, twenty-five and thirty per cent. of the first year's premiums on term policies, and seven per cent. on single-payment policies, and a like per cent. on premiums collected on second and subsequent years on term policies "while he is actively working his territory."

The other material stipulations of the contract are in these words:

"This agreement further witnesseth: That said party of the second part hereby accepts the agency of said company and agrees to devote his entire time and energy to the business of said company and to no other, and employ a sufficient number of agents to canvass the territory named and to see that the company is represented therein by efficient, active agents; that he will be responsible to said company for all premiums on policies and renewals sent him and for all papers and documents intrusted to him; that he will account to said company on or before the tenth day of each month, or at any other time when required, for all premiums received by him, or his agents, and remit the amount of the same less such charges as he is entitled to by this agreement, and that he will conduct the business in all respects in accordance with the instructions of the party of the first part. * * * This contract is to continue in force and effect so long as the agreements made by said Ehrlich are fully complied with. Should said Ehrlich fail to comply with any of the conditions or obligations of this agreement it may be terminated by said company without delay. * * * Said Ehrlich agrees to furnish said company with at least two hundred and fifty thousand dollars ($ 250,000) new insurance each year during the term of four years from date hereof, on which the premiums are paid and reported to said company within the year. And if he fails to obtain that amount he will pay to the company seventy-five cents for each $ 1,000 which he lacks of furnishing the required $ 250,000 new insurance for that year, and to pay a like sum for each succeeding year during the term of four years. If in any one year said Ehrlich obtains, pays and reports to said company more than $ 250,000 new insurance the excess shall be credited on the succeeding year. And, if during the four years he shall obtain, pay and report to said company $ 1,000,000 new insurance then the company shall return to said Ehrlich what he has paid it because of not furnishing the required amount. The books and records at the office in St. Louis are the property of the company and are subject to its inspection at any and all times."

The plaintiff in his amended petition sets out in full the foregoing contract and states that he complied with all its provisions; that he took a summer vacation from July 13, 1881, to September 1 of that year, and that he did this pursuant to a well-known custom and usage among managers of life-insurance business; that defendant made breach of its contract in this, that on and after February 27, 1882, it refused to send to him the renewal premium receipt for collection, and refused to recognize him as agent; that defendant attempted to cancel the contract, and did on said last mentioned date appoint another person to take charge of the business; that for the seventeen and one-half months he rendered services for the defendant reasonably worth $ 10,500, and expended moneys of his own in and about the agency, namely, $ 1,800 for office rent, $ 500 for clerk hire, and $ 200 for signs and stationery. Admits he has in his hands $ 1,848.15, and asks judgment for $ 11,451.85.

The answer admits the contract and that plaintiff took the vacation, but denies the alleged custom, the rendition of the alleged services and payment of expenses, and justifies the cancellation of the contract because of breaches thereof by the plaintiff in these respects: That he failed and refused to devote his entire time and energies to the business of the company, but on the contrary devoted a large portion of his time to outside business and absented himself from his agency sometimes for months; that he did not employ a sufficient number of agents to canvass the territory named in the contract; that he failed to account to the company on or before the tenth of each month for premiums; and failed to furnish $ 250,000 new insurance during each year. The reply is a general denial.

Pursuant to the contract the plaintiff opened an office in St. Louis hired and kept a clerk, and transacted business until the twenty-seventh of February, 1882. The company refused to send to plaintiff the collections for February, and on the last-named date placed Mr. Manning in possession of the business, saying in a letter dated the twenty-second of February and addressed to plaintiff: "It has been about a year and a half since the company re-entered the state of Missouri for the purpose of doing business under a contract with you, which stipulates certain duties which you have failed to perform, and which very much prejudice the company's interests. You have not worked the territory as required by the terms of your contract. You have not devoted your time exclusively to the business as it required. The company concludes, in view of the...