Embry v. Hargadine, McKittrick Dry Goods Co.

• Citation: 105 S.W. 777,127 Mo. App. 383
• Parties: EMBRY v. HARGADINE, McKITTRICK DRY GOODS CO.
• Decision Date: 05 November 1907
• Court: Missouri Court of Appeals

105 S.W. 777

127 Mo. A. 383

EMBRY v. HARGADINE, McKITTRICK DRY GOODS CO.

St. Louis Court of Appeals. Missouri.

November 5, 1907.

Rehearing Denied December 3, 1907.

1. MASTER AND SERVANT — CONTRACT OF HIRING — EVIDENCE — INSTRUCTIONS.

Where, in an action on a parol contract of hiring alleged to have been entered into after the termination of a written contract of employment, the witnesses coincided as to the terms of the re-employment proposed in a conversation between the parties and defendant only proved that he refused to enter into a contract with the employé regarding another year's employment, a charge that, in order to find for plaintiff, the jury must find not only that the conversation occurred, but that by such conversation both parties intended to contract with each other, was erroneous.

2. CONTRACTS — INTENTION OF PARTIES.

To constitute a contract there must, in general, be a meeting of the minds of the parties, and both must agree to the same thing, in the same sense; but, in so far as their intention is an element, it is only such intention as the words or the acts of the parties predicate, and not one secretly cherished, which is inconsistent therewith.

3. SAME — QUESTION FOR COURT.

The general rule is that it is for the court to construe the effect of writings relied on to make a contract, and the effect of unambiguous oral words, but, where the words are in dispute, the question whether they were used or not is for the jury.

4. MASTER AND SERVANT — CONTRACT OF EMPLOYMENT — QUESTION FOR COURT.

A contract of employment terminated December 15th. Eight days thereafter the employé demanded a contract for another year, and stated that unless he obtained one he would cease work at once. The employer responded: "Go ahead, you are all right." Held, that the conversation, as a matter of law, created a contract for a year, and the court erred in making the formation of the contract depend on a finding that both parties intended to make one.

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 and remanded.

Sloan Pitzer, for appellant. Johnson, Allen & Richards, for respondent.

GOODE, J.

We dealt with this case on a former appeal (115 Mo. App. 130, 91 S. W. 170). It has been retried, and is again before us for the determination of questions not then reviewed. The appellant was an employé of the respondent company under a written contract to expire December 15, 1903, at a salary of $2,000 per annum. His duties were to attend to the sample department of respondent, of which he was given complete charge. It was his business to select samples for the traveling salesmen of the company, which is a wholesale dry goods concern, to use in selling goods to retail merchants. Appellant contends that on December 23, 1903, he was re-engaged by respondent, through its president, Thos. H. McKittrick, for another year at the same compensation and for the same duties stipulated in his previous written contract. On March 1, 1904, he was discharged, having been notified in February that, on account of the necessity of retrenching expenses, his services and that of some other employés would no longer be required. The respondent company contends that its president never re-employed appellant after the termination of his written contract, and hence that it had a right to discharge him when it chose. The point with which we are concerned requires an epitome of the testimony of appellant and the counter testimony of McKittrick, the president of the company, in reference to the alleged re-employment. Appellant testified: That several times prior to the termination of his written contract on December 15, 1903, he had endeavored to get an understanding with McKittrick for another year, but had been put off from time to time. That on December 23d, eight days after the expiration of said contract, he called on McKittrick, in the latter's office, and said to him that as appellant's written employment had lapsed eight days before, and as there were only a few days between then and the 1st of January in which to seek employment with other firms, if respondent wished to retain his services longer he must have a contract for another year, or he would quit respondent's service then and there. That he had been put off twice before and wanted an understanding or contract at once so that he could go ahead without worry. That McKittrick asked him how he was getting along in his department, and appellant said he was very busy, as they were in the height of the season getting men out — had about 110 salesmen on the line and others in preparation. That McKittrick then said: "Go ahead, you're all right. Get your men out, and don't let that worry you." That appellant took McKittrick at his word and worked until February 15th without any question in his mind. It was on February 15th that he was notified his services would be discontinued on March 1st. McKittrick denied this conversation as related by appellant, and said that, when accosted by the latter on December 23d, he (McKittrick) was working on his books in order to get out a report for a stockholders' meeting, and, when appellant said if he did not get a contract he would leave, that he (McKittrick) said: "Mr. Embry, I am just getting ready for the stockholders' meeting to-morrow. I have no time to take it up now. I have told you before I would not take it up until I had these matters out of the way. You will have to see me at a later time. I said: `Go back upstairs and get your men out on the road.' I may have asked him one or two other questions relative to the department, I don't remember. The whole conversation did not take more than a minute."

Embry also swore that, when he was notified he would be discharged, he complained to McKittrick about it, as being a violation of their contract, and McKittrick said it was due to the action of the board of directors, and not to any personal action of his, and that others would suffer by what the board had done as well as Embry. Appellant requested an instruction to the jury setting out, in substance, the conversation between him and McKittrick according to his version, and declaring that those facts, if found to be true, constituted a contract between the parties that defendant would pay plaintiff the sum of $2,000 for another year, provided the jury believed from the evidence that plaintiff commenced said work believing he was to have $2,000 for the year's work. This instruction was refused, but the court gave another embodying in substance appellant's version of the conversation, and declaring it made a contract "if you (the jury) find both parties thereby intended and did contract with each other for plaintiff's employment for one year from and including December 23, 1903, at a salary of $2,000 per annum." Embry swore that, on several occasions when he spoke to McKittrick about employment for the ensuing year, he asked for a renewal of his former contract, and that on December 23d, the date of the alleged renewal, he went into Mr. McKittrick's office and told him his contract had expired, and he wanted to renew it for a year, having always worked under year contracts. Neither the refused instruction nor the one given by the court embodied facts quite as strong as appellant's testimony, because neither referred to appellant's alleged statement to McKittrick that unless he was re-employed he would stop work for respondent then and there.

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