Frager v. Glick
| Decision Date | 12 June 1961 |
| Docket Number | No. 1,No. 47784,47784,1 |
| Citation | 347 S.W.2d 385 |
| Court | Missouri Supreme Court |
| Parties | Joseph FRAGER, Plaintiff-Appellant, v. Melvin H. GLICK, McKnight Heights, Bon Hills, Oak Estates, Melvin H. Glick & Co., G. S. Homes, Inc., a Corporation, Melvin H. Glick & Co., Bildors, Inc., a Corporation, and Melvin H. Glick & Co., Realtors, Inc., a Corporation, Defendants-Respondents |
Ackerman, Schiller & Lake, Paxton H. Ackerman, Clayton, for appellant.
Shifrin, Treiman, Agatstein & Schermer, St. Louis, for respondents.
HOLMAN, Commissioner.
Plaintiff instituted this action in an effort to recover certain real estate commissions totaling $9,175.77. Defendants filed a counterclaim (based upon the alleged fraud of plaintiff in the sale of certain real estate) in which they sought actual and punitive damages totaling $80,000. A trial resulted in a verdict for plaintiff upon his claim in the amount sued for, with interest, all of which totaled $10,962.56. The verdict was also in favor of plaintiff on defendants' counterclaim. Thereafter, the trial court sustained the defendants' motion for new trial both as to plaintiff's claim and defendants' counterclaim for the reason 'that the verdict of the jury was against the weight of the evidence and against the law especially as to prejudicial instructions number 7, 12 and 14 when considered with other instructions in the case.' Plaintiff has appealed from that order.
For a number of years Melvin H. Glick conducted extensive operations in residential and commercial developments in St. Louis County. To a large extent it was his policy to organize a separate corporation or partnership in conducting the business of developing each new subdivision. He owned or at least controlled each of those concerns. A long-time friend, David Stiffelman, was interested substantially in some of the projects. Melvin's brother, Jerry, also had an interest in some of the developments.
A number of the concerns organized by Melvin are defendants herein. In that connection defendants admitted in their answer that 'the business activities and assets of the defendants upon behalf of which this answer is filed, and other persons and corporations, were commingled and exchanged to such an extent as to result in a hodge-podge as alleged by plaintiff and to constitute all of these defendants and other persons and corporations co-venturers each with the other.'
In the latter part of 1952 plaintiff was employed by the Glick organization as their only salesman. He was to have the exclusive right to sell the houses in their subdivisions and would receive a certain commission (usually from $250 to $400) for each house sold. At the beginning his drawing account was $100 per week. According to the testimony of Melvin, plaintiff 'started off with a bang,' was an 'excellent salesman, our top salesman.' He was soon earning commissions which would average about $25,000 per year, and by December 1954 his drawing account was $400 per week.
During 1953 and 1954 the Glick organization grew rapidly. Plaintiff had become sales manager and had 11 or 12 salesmen under his control and there were about five girls in the office.
In December 1954 Melvin came to the conclusion that plaintiff should be compensated under a different arrangement. This resulted from the fact that the other salesmen were complaining that plaintiff was too much competition for them. Melvin had several conferences with plaintiff which culminated in an oral agreement made at a conference on December 28, 1954. A memorandum of the conference was prepared and signed by Melvin and was delivered to plaintiff who retained it without objection but did not sign it.
The new agreement as expressed in the memorandum provided that plaintiff was no longer to receive sales commissions but would be compensated by receiving 10% of the net profits of the various operations conducted from the Glick office. The memo also states that the In his testimony plaintiff conceded that the memo expressed the agreement 'in substance, but particulars were left out.' He also stated that the $500 weekly payment was referred to in the conversation as a salary and not as a drawing account. It was admitted by the defendants that on December 31, 1954, plaintiff had a credit of $17,507.02 in his drawing account and hence defendants were indebted to him in that amount. Plaintiff alleged that thereafter defendants made payments to him on account thereof as follows: April 22, 1955, $2,500; July 28, 1955, $3,500; September 19, 1955, $1,500; and January 10, 1956, $3,000. It is claimed by plaintiff that the balance of $7,007.02 of said stated indebtedness is owed to him be defendants.
In July 1955 plaintiff's weekly check was reduced to $400. On May 27, 1956, Melvin suffered a coronary thrombosis and was in the hospital until rule 10. He remained at home for more than a month after his release from the hospital and for several weeks thereafter spent only an hour or two in the office every few days. After Melvin entered the hospital it became apparent that the financial condition of the Glick operations was in a 'precarious' state and that the subdivisions were suffering very severe losses. Because of that situation plaintiff made a temporary arrangement with Melvin's attorney, in July 1956, whereby he was again placed on a commission basis and his drawing account was reduced to $200 per week. Plaintiff was discharged in September 1956. In this suit he claims a balance due of $2,168.75 upon commissions alleged to have been earned during the last nine weeks of his employment.
There was evidence to the effect that there were no net profits resulting from the Glick operations after the new compensation arrangement between plaintiff and Melvin became effective (January 1, 1955). There was testimony by a C. P. A. employed in the Glick office that on March 15, 1956, plaintiff was 'overdrawn' $20,950.78. The situation did not improve during the remainder of the time plaintiff was employed by the Glick organization.
We will first consider contentions relating to plaintiff's claim. At we have indicated, it is plaintiff's theory in this case (1) that under the agreement of December 28, 1954, he was, in any event, entitled to collect the balance then in his drawing account, i. e., $17,507.02; (2) that the weekly payments he received from January 1, 1955, to July 1956, constituted a salary; and (3) that defendants are indebted to him for the amount by which the commissions earned during the last nine weeks of employment exceeded his $200 per week drawing account. To the contrary, it is the theory of defendants that plaintiff had a drawing account throughout the entire period of his employment and that the only changes resulting from the agreement of December 1954 were that the weekly draw was increased to $500 and the drawing account was thereafter to be credited with a percentage of the net profits of the Glick operations instead of sales commissions earned by plaintiff. Under that theory the payments made to plaintiff after January 1, 1955, would have exhausted the balance in the drawing account on that date. The instructions given by the court submitted plaintiff's claim, and defendants' defense thereto, substantially according to the theories herein outlined.
Plaintiff here contends that the trial court erred in sustaining defendants' motion for new trial, as to plaintiff's claim, on the ground that the verdict was against the weight of the evidence because there was no substantial evidence to support the defense interposed by defendants and hence the action of the court was arbitrary and constituted an abuse of discretion.
Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825, 831.
Although stated in different language it is obvious that plaintiff's real contention is that he is entitled to recover the amount sued for as a matter of law. There are two reasons why we fail to agree with that contention. The first is that defendants did not admit that plaintiff earned the amount of commissions claimed during the last nine weeks of his employment and hence there was a jury issue concerning his right to recover the balance of $2,168.75 alleged to be due upon that item. Secondly, we are of the opinion that the evidence relating to the agreement of December 28, 1954, would reasonably support a jury finding in accordance with defendants' theory of defense.
Plaintiff's contention is based primarily upon the fact that defendants admitted that he had a balance of $17,507.02 in his drawing account on December 28, 1954, and that the last paragraph of the memo of that date contained the provision that 'any commissions that Joe Frager has earned up...
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...broad inherent discretion to grant one new trial on the ground that the verdict is against the weight of the evidence. Frager v. Glick, Mo., 347 S.W.2d 385, 387(1); State ex rel. State Highway Com'n. v. Belvidere Development Co., Mo., 315 S.W.2d 781, 784(7). But that discretion is to be exe......
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