Ehrlich v. Ætna Life Ins. Co.

• Court: Missouri Supreme Court
• Writing for the Court: BLACK
• Citation: Ehrlich v. Ætna Life Ins. Co., 88 Mo. 249 (Mo. 1885)
• Decision Date: 31 October 1885
• Parties: EHRLICH, Appellant, v. THE ÆTNA LIFE INSURANCE COMPANY.

88 Mo. 249

EHRLICH, Appellant,

v.THE ÆTNA LIFE INSURANCE COMPANY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Noble & Orrick for appellants.

(1) The measure of damages, as fixed by the court below in the instructions given, is correct under the pleadings and the conduct of the trial in the court below. Moore v. Mountcastle, 72 Mo. 605; Pomeroy v. Benton, 57 Mo. 550; Flowers v. Helm, 20 Mo. 324. (2) It is not true that plaintiff sued for breach of contract and recovered on a quantum meruit. (3) Even if the petition only alleged general damages by reason of the breach of contract assigned, it would justify the instruction given by the court and the verdict rendered by the jury. Moore v. Mountcastle, 72 Mo. 605. (4) In the petition facts are stated which would entitle plaintiff to special damages, even if under a general averment of damages he would not be entitled to them. (5) The cause was tried on the theory adopted by both the respondent and appellant upon the pleadings as made, and for that reason the judgment should be sustained. Pomeroy v. Benton, 57 Mo. 550; Flowers v. Helm, 29 Mo. 324; Leabo v. Goode, 67 Mo. 134. (6) The amount of damages is not excessive. (7) The acceptance of the penalty by respondent paid by appellant in December, 1881, was a waiver of all breaches of the contract on part of appellant, which existed prior to such acceptance and of which respondent had knowledge at the time. Pike v. Nash, 3 Abbott's (N. Y.) App. 610; Williams v. Porter, 51 Mo. 441; Waters v. Harvey, 3 Houst, (Del.) 441; Melton v. Smith, 65 Mo. 315; Garrison v. Dingman, 56 Mo. 150; Fitch v. Woodruff, 29 Conn. If a servant has been guilty of misconduct and the master, knowing it, retains him in his service, prima facie, it is a waiver, and a condonation is presumed. Ridgway v. Hungerford, 3 Ad. & El. 171. (8) The construction by the court of appeals of the contract of September 16, 1880, as to the duty of the plaintiff under the clause requiring him to devote his entire time and energy to the business of the defendant and to no other, is erroneous and unreasonable. The plaintiff by the contract did not become respondent's slave. (9) The court of appeals erred in holding that a failure by appellant to report to the respondent by the tenth of the month, as required by the contract, prior to the payment of the penalty of $172.50, constituted cause for canceling the contract by respondent in February, 1882, although appellant, for months of January and February, 1882, did make his reports, etc., as required by the contract.

G. A. Castleman for respondent.

(1) In a suit for damages for the breaches of a specific contract, there cannot be any recovery upon a quantum meruit. Perry v. Barnet, 18 Mo. 140; Yeats v. Ballentine, 56 Mo. 533; Eyerman v. Mt. Sinai Co., 61 Mo. 490; Cutter v. Powell, 2 Smith's Leading Cases (4 Am. Ed.), Hare & Wallace's Notes, 40, et seq., and cases cited. This was a suit for damages for the breaches of a specific contract. Yeats v. Ballentine, 56 Mo. 538; Eyerman v. Mt. Sinai Am. Co., 61 Mo. 490. (2) In a suit for damages for the breaches of a specific contract, the measure of damages is the natural and proximate consequences, measured by the terms of the contract itself. 2 Sedgwick on Meas. of Dam. (7 Ed.) 436, side page 203. In the case at bar, upon the petition, the only measure of damages was the present value of the commissions stipulated in the contract upon the collection of renewal premiums to become due during the life of his contract upon policies in force in the territory covered by his contract. Lewis v. Ins. Co., 61 Mo. 539; Ensworth v. Ins. Co., 1 Bigelow, Life and Accident Rep., 645; Ins. Co. v. Green, 77 Ind. 590; Nixson v. Ins. Co., Ins. Law Journal (Aug. 1882) 570; Life Ass'n of America v. Ferrill, 60 Ga. 414; May on Ins. (2 Ed.) 576. (3) A servant wrongfully discharged by his master has his election to sue immediately for damages for the breach of the contract of employment, or, where his wages are not fully paid up to the date of his discharge, he may sue upon a quantum meruit for services actually rendered. But, having made his election, he must stand by it. Bliss on Code Pleadings, 17; Booge v. Ry. Co., 33 Mo. 212; McCullough v. Baker, 47 Mo. 401; Chamberlin v. Scott, 33 Vt. 80; Moody v. Leverick, 4 Daly, 401; Polk v. Daly, 4 Daly, 411; 2 Smith's Leading Cases, supra. But this election cannot be made if the contract price has been fully paid up to the time of his discharge. In such case the sole measure of damages will be the loss or injury occasioned by the breach of contract. Moody v. Leverick, 4 Daly, 409; Ream v. Watkins, 27 Mo. 516; Stone v. Vimont, 7 Mo. App. 281. In the case at bar plaintiff's wages were paid in full up to the date of his discharge. (4) It is the duty of an employe, improperly discharged before his time of employment expires, to make reasonable exertions to obtain other employment, and what he might have earned in other employment is competent evidence in mitigation of damages. Lewis v. Insurance Co., 61 Mo. 534; Stone v. Vimont, 7 Mo. App. 277. (5) The difficulty or even the impossibility of an agent's employing sufficient agents both in number and efficiency to canvass the territory covered by his contract (when such is the requirement of his contract) furnishes no excuse for his failure to comply with its terms. Lewis v. Ins. Co., 61 Mo. 539. (6) The construction of a written contract is a question of law for the court, and it is error to submit such a question to the jury. Charging the Jury (Thompson) sec. 12, and authorities cited; Hudson v. Railroad, 53 Mo. 539; Hickey v. Ryan, 15 Mo. 46; Newman v. Lawless, 6 Mo. 279.

BLACK, J.

This suit grows out of a contract made by plaintiff and the defendant dated the sixteenth of September, 1880. By the terms of the contract, plaintiff was appointed the general agent of the defendant for this state, Jackson county excepted, to procure applications for insurance, receive the premium thereon and on the renewals thereof and to collect renewals on existing policies. It seems the defendant had before been engaged in the insurance business in this state, but had withdrawn therefrom and by this contract it sought to re-enter the state for business. For the services of himself and his agents, the plaintiff was to have specified commissions on the premiums collected. Among the stipulations contained in the contract are the following, viz: “This contract is to continue in force and effect so long as the agreements made by said plaintiff are fully complied with. Should plaintiff fail to comply with any of the conditions or obligations of this agreement, it may be terminated by said company without delay. The books and records of the office at St. Louis are the property of the company. The plaintiff on his part among other things agrees to devote his entire time and energy to the business of the company and to no other, and employ a sufficient number of agents to canvass the said territory named, and to see that the company is represented therein by efficient active agents; 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; that he will furnish each year $250,000 of new insurance during the term of four years from the date of the contract, or pay seventy-five cents for every $1,000 of that amount which he fails to furnish; if he furnishes more than that amount in any one year he is to have credit for the excess on the next year, and if in the four years he furnishes more than the aggregate for those years then he is to have the money thus paid refunded.”

The petition sets out at length the contract, and alleges a compliance with its terms, and states that on the twenty-seventh of February, 1882, the defendant, without his consent, appointed another agent for the territory and informed him that it had cancelled the contract, declined to send him renewal receipt for collection and required him to turn over the books, etc., to such other person. The defendant denies in its answer that plaintiff complied with the terms of the contract, but alleges that he made breach of the agreement on his part before noted, because of which it cancelled the contract and notified the plaintiff to turn the books, etc., over to another person.

The evidence of plaintiff conduces to show that he appointed the requisite number of agents, had an office and kept a clerk there at St. Louis, and generally complied with the terms of the contract, save that he did not at all times make his reports monthly and sometimes made two or three in one. Of this he says the company sometimes complained; and sometimes they said nothing; they called his attention to his negligence and he said he would do better, when perhaps he did the same thing, but when it came to the wind up, he held strictly to the contract. From his cross-examination, it appears that during the time of his agency he was engaged in buying some eight or twelve policies in the Globe Insurance Company of New York, which was in liquidation, from which he made, he says, less than $1,000. In March, 1881, he was in New York a week on business for others. He also transacted some business by correspondence for Mr. Parsons, for which he received six hundred dollars. He seems to have informed the defendant of this trip and the officers at once made complaint of his absence. Notwithstanding these complaints he went to the Minnesota lakes and remained there from thirteenth of July until third of September. He also took some part in the organization of a riding school, but this, he says, was only to give the use of his name to another party, and that it consumed little or none of his time. The total amount of insurance taken, that is, the amount of the policies, was $30,000, and he procured no new insurance after ...