Fredericks v. Red-E-Gas Co.

Citation307 S.W.2d 709
Decision Date03 December 1957
Docket NumberNo. 29716,RED-E-GAS,29716
PartiesClyde F. FREDERICKS (Plaintiff), Respondent, v.COMPANY, a Corporation (Defendant), Appellant.
CourtCourt of Appeal of Missouri (US)

Ziercher, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Erwin Tzinberg, Clayton, for appellant.

Detjen & Detjen, C. W. Detjen, John F. Nangle, Clayton, for respondent.

HOUSER, Commissioner.

Action by Clyde F. Fredericks, employee, against Red-E-Gas Company, employer, for breach of contract, refusal to pay commissions and salary and for wrongful discharge after working ten months under a two-year oral contract of employment. Employer appeals from a judgment of the Circuit Court of St. Louis County for $4,300 entered upon a jury verdict for employee.

The petition alleged an oral agreement between plaintiff and defendant's officers in January, 1954 to employ plaintiff as sales manager for at least two years; an assurance that the agreement would be put in writing; entry upon his duties in February, 1954; performance by plaintiff; reduction of the agreement to writing in June, 1954; wrongful refusal to pay commissions according to the contract; wrongful discharge in January, 1955 and refusal to pay subsequent salaries and commissions.

The answer pleaded that plaintiff had no right of recovery under the contract because it violated the provisions of the Statute of Frauds, section 432.010 RSMo 1949, V.A.M.S.; failure of performance by plaintiff and lack of authority of the then president of the corporation to enter into any contract with plaintiff.

Defendant-appellant's first, third and fourth points relate essentially to the question whether the writing is a sufficient memorandum to remove the oral contract from the operation of the Statute of Frauds. The following is the memorandum relied upon:

'Red-E-Gas Company

'Bottle and Bulk Gas--Gas Equipment

'9000 Watson Road (Highway 66) St. Louis County 19, Mo.

'Phone VIctor 3-4021

'February 2, 1954.

'Mr. Clyde F. Fredericks,

'8663 Brookshire Dr.,

'University City 24, Missouri

'Dear Mr. Fredericks:

'I was very pleased to have you visit me the other day and was rather encouraged by your attitude and apparent cooperation.

'I have thought about the matter very carefully and discussed the details with Mr. Berry, and it is the purpose of this letter to offer you the following:

'We will pay you a salary of $85.00 per week. We will furnish you a new automobile through outright purchase or maybe one can be leased. This company will maintain the car and furnish all the gas and oil, etc., and we will pay all of your travelling and miscellaneous expenses incident to promotions and sales of the company in visiting our dealers.

'In addition to the above, the company offers you 1 1/2% commission on all sales. Now, this includes everything except the sales of propane and butane gas. You will receive this commission of 1 1/2% on all sales--whether the sales are made by the company direct, commonly referred to as 'house sales or over-the-counter sales' or sales made by salesmen, and all sales to dealers including wholesale and retail. I quarantee you two years work on the above arrangement. If you are not satisfied at the end of the first year, you can leave our employment by giving us two weeks notice, but if you are satisfied, we will guarantee you an additional year.

'We will pay you your salary and expense account every week but your commission will be paid during the latter part of December of each year, some time between the 1st and 20th, in a lump sum. Your title will be 'Sales Manager'. You will be in charge of all of our dealers and our salesmen. You will develop your own rules and regulations in that department and you will have complete charge of all sales. We will furnish you with an office, with all office facilities, including dictaphone.

'I know, Mr. Fredericks, that you are now the factory representative of the Hunt Heater Company and the Morrison Steel Products Company, and I know that you have a partner to contend with, and that you will probably earn more money than I am offering you but as I told you the other day, the potentials in the LP field are terrific, and I believe that before 1954 runs around, you will be earning twice as much as you are today. This company has gone through an expansion program which has now been completed, and all we want to expend on in 1954 is the increased volume of business.

'I trust that you will give this offer every serious consideration, and discuss it with your wife and partner, and advise me at the earliest opportunity either your acceptance of your rejection.

'Trusting to hear favorably from you, with kindest regards, I am,

'Sincerely yours

'Red-E-Gas Company

'/s/ Jos. Falzone

'President.'

Appellant argues that the writing is insufficient; that such memorandum must show an existing and binding contract, a meeting of the minds of the parties, a completed agreement * * * an unconditional, unequivocal acceptance in exact accord with the offer; that this memorandum does no such thing; this it is nothing more or less than an offer, which in terms required acceptance in a certain manner; that it was not accepted in that manner; that it does not show that plaintiff accepted the terms offered, as required by the letter, or that plaintiff went to work on those terms, and therefore the letter fails as such memorandum. Consistent with that theory appellant attacks the giving of verdict-directing Instruction No. 1 for failure to require a finding, and the refusal of requested Instruction No. A which required a finding, as a prerequisite to a verdict for plaintiff, that plaintiff accepted the offer contained in the letter by express written or verbal statement delivered to defendant.

It is true that in form and appearance the letter is naught but an offer of employment. Considered separately and apart from the circumstances it does not constitute a memorial of an acceptance of the offer or of a completed contract. In determining whether a paper writing is sufficient to satisfy the provisions of the Statute of Frauds, however, it is always permissible for the court to look to the surrounding facts and circumstances. National Refining Co. v. McDowell, Mo.Sup., 201 S.W.2d 342, and cases cited. Those circumstances convince us that the letter is a sufficient memorandum to remove the oral contract from the operation of the Statute of Frauds; that the writing is a memorial of an existing, completed contract on which the minds of the parties had met and under which the parties were operating, and that the letter was not written, dispatched or intended as an offer which might form the basis of any new contractual relationship between the parties, but expressly for the purpose of recording the terms of an existing oral contract. Plaintiff's evidence shows that in January, 1954 plaintiff and Joseph A. Falzone, president of defendant corporation, commenced negotiations looking to the employment of plaintiff by defendant. Several discussions were had, some in the presence of Mr. Berry, a vice-president of the corporation. Eventually plaintiff and Falzone reached a definite oral agreement concerning the terms of plaintiff's employment, at which time Falzone assured plaintiff that he would put the terms of their agreement in writing. Both sides agree that plaintiff went to work for defendant as its sales manager on March 1, 1954 at a salary of $85 per week and that defendant furnished plaintiff with a car, an office, a secretary and an expense account. On March 9, 1954 Falzone signed a form required by FHA verifying plaintiff's employment, in which he certified to the following information:

'Length of time employed March 1, 1954

'Present Position Sales Manager

'Present rate of pay: $85.00 per week plus commissions

'Approximate annual earnings from regular schedule work: $4,500,00

'Approximate annual earnings for overtime work: None 'Approximate annual commissions $3,000.00 upward

'Probability of continued employment and other remarks: Mr. Fredericks perfectly fits the position that he fills and his potential of large earnings is great and it is my opinion that he will continue in our employ for many years to come.'

Plaintiff testified that on several occasions after March 1, 1954 he asked Falzone whether he had ever written out his contract; that Falzone would answer that he was 'pretty busy' but that he would 'get around to it very shortly.' In May, 1954 Mr. Bartlesmeyer, a salesman, told Falzone that plaintiff was anxious to get his contract. Falzone answered that he was 'going to get this contract' to plaintiff. Finally in June, 1954 Falzone dictated and dispatched the letter in question which was received by plaintiff in due course. The letter purports to have been written February 2, 1954 but no one contends that it was written at that time. For some reason not shown Falzone dated the letter back, thereby making it appear to have been written in February during the preliminary negotiations leading up to the actual formation of a contract. Its references, terminology and setting all relate to the situation existent in February. Regardless of this fact, all the pertinent evidence indicates that the letter was supplied to plaintiff for the purpose of reducing to writing the terms of the contract of employment. Falzone left the corporation in September, 1954. His successor as president, Mr. Reutner, inquired of plaintiff in October, 1954 what arrangement the latter had with the company. Plaintiff testified that he told Reutner 'exactly what was in that letter' and that that was 'quite agreeable.' The existence of an oral contract of employment is established by this record and is not controverted by plaintiff. When, in December, 1954 plaintiff made demand for commissions due under the contract Reutner searched the company records. In the course of this...

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4 cases
  • International Plastics Development, Inc. v. Monsanto Co.
    • United States
    • Missouri Supreme Court
    • 13 Mayo 1968
    ...the factual existence of a contract.' In support of this statement the appellants cite Kludt v. Connett, supra, and Fredericks v. Red-E-Gas Co., Mo. App., 307 S.W.2d 709. But in the Kludt case there was in point of fact a memorandum in writing and in the Fredericks case there was a letter, ......
  • Olsten v. Susman
    • United States
    • Missouri Supreme Court
    • 11 Diciembre 1962
    ...Consult Civil Rules 70.02, 79.03, 83.13(a), V.A.M.R.; Hanff v. St. Louis Pub. Serv. Co., Mo., 355 S.W.2d 922, 926; Fredericks v. Red-E-Gas Co., Mo.App., 307 S.W.2d 709, 715. Defendant's counsel stated during argument: 'It is very strange to me that the only forgotten man in this case is Dr.......
  • Rugg v. City of Carrollton, WD
    • United States
    • Missouri Court of Appeals
    • 2 Marzo 1999
    ...court may not be raised on appeal to convict the trial court of error; therefore the point should be denied. Fredericks v. Red-E-Gas Company, 307 S.W.2d 709, 715 (Mo.App.1957). Additionally, there is nothing in this record which would allow Carrollton to escape taking the consequences for w......
  • Geneser v. State Farm Mut. Auto. Ins. Co., WD
    • United States
    • Missouri Court of Appeals
    • 17 Octubre 1989
    ...connection. New points by an appellant raising new objections, not addressed at trial will not be reviewed. Fredericks v. Red-E-Gas Company, 307 S.W.2d 709, 715 (Mo.App.1957). The same should hold true for a matter such as this now raised at argument by a respondent, therefore the case is r......

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