Embry v. Hargadine, Mckittrick Dry Goods Co.
| Decision Date | 05 November 1907 |
| Citation | 105 S.W. 777,127 Mo.App. 383 |
| Parties | EMBRY, Appellant, v. HARGADINE, McKITTRICK DRY GOODS COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sloan Pitzer for appellant; E. W. Banister of counsel.
Johnson & Richards and John H. Holliday for respondent.
(1) The plaintiff declared upon an express contract of hiring for one year, but totally failed to prove any contract. Hayes v Bunch, 91 Mo.App. 470; Lewis v. Slack, 27 Mo.App. 129; Feurt v. Ambrose, 34 Mo.App. 366; Boogher v. Insurance Co., 8 Mo.App. 533; Leveridge v. Lipscomb, 36 Mo.App. 630; Finger v Brewing Co., 13 Mo.App. 311; Evans v. Railway, 24 Mo.App. 114. (2) Instruction No. 1 in appellant's statement was incomplete as offered by appellant and was properly modified by the court. Embry v. Dry Goods Co., 115 Mo.App. 134; Newberry v. Durand, 87 Mo.App. 296; Ling v. Westerman, 80 Mo.App. 594, 595; McCormack v. Henderson, 100 Mo.App. 654.
--We dealt with this case on a former appeal (115 Mo.App. 130). It has been retried and is again before us for the determination of questions not then reviewed. The appellant was an employee 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 employees, 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 first 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:
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. It is assigned for error that the court required the jury, in order to return a verdict for appellant, not only to find the conversation occurred as appellant swore, but that both parties intended by such conversation to contract with each other for plaintiff's employment for the year from December, 1903, at a salary of $ 2,000. If it appeared from the record that there was a dispute between the parties as to the terms on which appellant wanted re-employment, there might have been sound reason for inserting this clause in the instruction; but no issue was made that they split on terms; the testimony of McKittrick tending to prove only that he refused to enter into a contract with appellant regarding another year's employment until the annual meeting of stockholders was out of the way. Indeed, as to the proposed terms McKittrick agrees with Embry; for the former swore as follows: "Mr. Embry said he wanted to know about the renewal of his contract; said if he did not have the contract made he would leave." As the two witnesses coincided as to the terms of the proposed re-employment, there was no reason for inserting the above mentioned clause in the instruction in order that it might be settled by the jury whether or not plaintiff, if employed for one year from December 23, 1903, was to be paid $ 2000 a year. Therefore it remains to determine whether or not this part of the instruction was a correct statement of the law in regard to what was necessary to constitute a contract between the parties; that is to say, whether the formation of a contract by what, according to Embry was said, depended on the intention of both Embry and McKittrick. Or, to put the question more precisely, did what was said constitute a contract of re-employment on the previous terms irrespective of the intention or purpose of McKittrick? Judicial opinion and elementary treatises abound in statements of the rule that to constitute a contract there must be a meeting of the minds of the parties and both must agree to the same thing in the same sense. Generally...
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