Embry v. Hargadine-McKittrick Dry Goods Co.

• Decision Date: 14 November 1905
• Citation: 91 S.W. 170,115 Mo. App. 130
• Parties: EMBRY v. HARGADINE-McKITTRICK DRY GOODS CO.
• Court: Missouri Court of Appeals

91 S.W. 170

115 Mo. App. 130

EMBRY v. HARGADINE-McKITTRICK DRY GOODS CO.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

1. MASTER AND SERVANT—CONTRACT OF EMPLOYMENT.

Where a contract of employment terminated on the 15th day of December, and on the 23d day of that month the employé, in conversation with his employer, referred to the previous contract and requested to be employed for "this year," his proposal should not be interpreted as a proposal for employment from the 23d to the close of the year; but the unmistakable inference is that he wanted to be hired for another year, running either from the expiration of his first contract or from the date of the conversation.

2. SAME—QUESTIONS FOR JURY.

In an action on a parol contract of hiring, wherein it was alleged that plaintiff was employed for one year and wrongfully discharged, evidence as to defendant's acceptance of plaintiff's proposal for re-employment considered, and held, that the question should have been submitted to the jury.

3. FRAUDS, STATUTE OF—CONTRACTS NOT TO BE PERFORMED WITHIN A YEAR—CONSTRUCTION.

Where a contract of employment had expired on the 15th day of December, and on the 23d the employé made a proposal for re-employment for "this year," which the evidence tended to show was accepted, such contract was to be performed within one year, either from the expiration of the old contract or from the date of the conversation, and was not within the statute of frauds.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Charles R. Embry against the Hargadine-McKittrick Dry Goods Company. From a judgment for defendant, plaintiff appeals. Reversed.

Sloan Pitzer, for appellant. Johnson & Richards, Chas. Claflin Allen, and John N. Holliday, for respondent.

GOODE, J.

Action on a parol contract of hiring, wherein it was alleged plaintiff was employed by the defendant for a period of one year from December 23, 1903, and wrongly discharged on March 1, 1904, to his damage in the sum of $1,616.64. On November 25, 1901, the plaintiff and defendant entered into the following written agreement: "This agreement, made November 25, 1901, between Hargadine-McKittrick Dry Goods Co., of St. Louis, Mo., and Charles R. Embry, witnesseth: Hargadine-McKittrick Dry Goods Co. employs the said Embry for a period of two years from December 15, 1901, at a salary of two thousand dollars ($2,000) per annum. The employment and duties of said Embry shall be to have complete general charge of the sample department. Embry agrees that he will devote his entire time to the business of the company and comply with the instructions of its officers. Hargadine-McKittrick D. G. Co., by Thos. H. McKittrick, Prest." Plaintiff continued in the employ of the defendant during the time stipulated in the above contract, which, as will be seen, expired December 15, 1903. Some time prior to said date plaintiff spoke to Thos. H. McKittrick, president of the defendant company, in reference to future employment, but was put off by McKittrick with the excuse that the latter was too busy at the time to take up plaintiff's proposal. So the matter stood until December 23, 1903, when plaintiff went to McKittrick's office, and finding him in, plaintiff asked that his contract be renewed for a year, saying that he had no contract, as the old one had expired. In this conversation plaintiff informed McKittrick that only a short time was left in which he could obtain employment for the ensuing year, and he would have to cease working for the defendant unless his contract was renewed. Plaintiff was in charge of the sample department of defendant's store. He said that in the conversation McKittrick showed an interest in his work, asked plaintiff how he was getting along, and, in response to the demand for a renewal of the previous contract, said: "You are all right; go on with the work and get your men out." Such, in substance, is the testimony of the plaintiff, as repeated several times in the course of his examination in chief and cross-examination. He said he asked McKittrick to renew his contract "for the present year" and "for this year," using both forms of expression. And, again: "I...