Fullington v. Ozark Poultry Supply Co.

• Decision Date: 05 June 1931
• Docket Number: 29727
• Citation: 39 S.W.2d 780,327 Mo. 1167
• Parties: Marion T. Fullington, Appellant, v. Ozark Poultry Supply Company
• Court: Missouri Supreme Court

39 S.W.2d 780

327 Mo. 1167

Marion T. Fullington, Appellant, v. Ozark Poultry Supply Company

No. 29727

Supreme Court of Missouri

June 5, 1931

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded (with directions).

Haymes & Dickey for appellant.

(1) The contract counted on is a binding contract containing every element necessary to make it so. By it the plaintiff agreed to pay in money to the corporation, and to work for it for five years in the capacity of general sales manager, and the defendant agreed, in consideration of his payment and agreement to perform services, to employ the plaintiff as general sales manager for a period of five years and to pay him therefor certain commissions and sixty dollars per week in advance. The agreements are mutual, bilateral, contain promises for promises and clearly embody the reciprocal obligations of the parties thereto. 13 C. J. 327; Royal Brewing Co. v. Oil Co., 205 Mo.App. 616, 226 S.W. 656; Steele v. Johnson, 96 Mo.App. 147; Wallace v Workman, 187 Mo.App. 113; Warren v. Coal Co., 200 Mo.App. 442, 207 S.W. 883; Printing Co. v. Graphite Co., 150 Mo.App. 383. (2) The contract is supported in the first instance by the agreement of the plaintiff to pay and his contemporaneous payment into the corporation of, three thousand dollars, and the agreement of the company to employ him for five years. It is not a contract supported only by the mutual agreements to employ and to perform services; but is supported also by the additional consideration consisting in the agreement to pay and the paying in of three thousand dollars by the plaintiff. 13 C. J. 337, sec. 188; 1 Page on Contracts, sec. 525; Sterns v. Railroad Co., 112 Mich. 651; Darknell v. Coeur D'Alene, 108 P. 538; Western Newspaper Union v. Kitchel, 166 N.W. 1021; Farabee-Treadwell Co. v. Union & Planters Bank, etc., 186 S.W. 92; Bonta v. Gridley, 78 N.Y.S. 961; Harrington v. Railway Co., 60 Mo.App. 223; Shannon v. Stevenson, 173 Pa. St. 419. (3) By the agreement the plaintiff bound himself to perform services absolutely. The company did not require all of the plaintiff's time, and it was agreed that such time should be devoted to the work of general sales manager as the affairs of the corporation required. The plaintiff was a man of judgment and he was to keep informed on the corporate affairs and devote all the time that the corporation affairs required, dividing the time between the office and the road as its business needs dictated. In no sense can the contract be construed as unilateral. Livesley v. Johnston, 76 P. 946, 65 L. R. A. 783; 1 Page on Contracts, sec. 572, p. 971. (4) The contract was never lacking in mutuality and besides the entry of the plaintiff upon his duties and the performance of the same according to the contract, added another element of mutuality that makes the sustaining of the demurrer palpable error. The demurrer admits all the facts stated in the petition, and, performance under the contract being admitted, all question of mutuality is removed. The cause of action pleaded is not one based on an executory unilateral agreement, but is one predicated on an executed contract. Want of mutuality is no defense in the case of an executed contract. Malloy v. Tie & Timber Co., 212 Mo.App. 429, 247 S.W. 469; Wallace v. Workman, 187 Mo.App. 113; 13 C. J. 334, secs. 181, 182; Underwood Typewriter Co. v. Realty Co., 220 Mo. 522 (affirming 118 Mo.App. 197); Schlitz Brewing Co. v. Poultry & Game Co., 287 Mo. 400, 229 S.W. 813; Reynolds v. Tie & Lumber Co., 227 S.W. 438; 1 Page on Contracts, sec. 582; Nicholson v. Acme Cement Plaster Co., 122 S.W. 773. (5) The plaintiff under the facts pleaded was clearly entitled to recover for the work done under the contract, and also the money due for the services which the plaintiff was able and willing to perform, but which the defendant prevented him from performing. Walker v. Lundstrom, 132 Mo.App. 367; 13 C. J. 656; Jones v. Shultz, 295 S.W. 477; Edwards v. School District, 297 S.W. 1001.

Page, Barrett & Barrett for respondent.

(1) The trial court properly sustained a demurrer to the first count of the appellant's petition, because the terms of the contract gave to the appellant an unlimited right to decide later the nature and extent of his performance, and whether or not he would perform at all. 1 Williston, Contracts, sec. 43; 13 C. J. 634; Page, Contracts, sec. 569; Nelson v. Van Bonnhorst, 29 Pa. St. 352; Cold Blast Trans. Co. v. Bolt & Nut Co., 114 F. 77; Clement v. Refining Co. (Tex.), 270 S.W. 706; Goff v. Saxon, 174 Ky. 330, 192 S.W. 24. (a) The promise to perform under this contract is conditional on the will of the appellant and is an unenforceable contract. The promise to perform services in this contract is analogous to contracts to supply merchandise in which no quantity is stated. White Oak Coal Co. v. Squier (Mo. App.), 219 S.W. 693; Halloway v. Creamery Co., 286 Mo. 489, 228 S.W. 451; Campbell v. Hawdle Co., 117 Mo.App. 19; Royal Brewing Co. v. Oil Co., 205 Mo.App. 616, 226 S.W. 656; Cherry v. Cham, 299 S.W. 598. (b) The appellant is entitled to sue on quantum meruit for services actually performed, measuring the value of his services by the contract, but he cannot sue for a breach of the entire contract as he attempts to do here. Rehm-Zeither Co. v. F. G. Walker Co., 156 Ky. 6; Clement v. Refining Co. (Tex.), 270 S.W. 206; Davie v. Mining Co., 93 Mich. 491, 24 L. R. A. 557. (c) Under this unilateral contract the defendants had a right to notify the appellant that his services were no longer desired (as they did) and thus terminate the agreement and prevent recovery for future services. Halloway v. Creamery Co., 286 Mo. 489, 228 S.W. 451. (2) The purchase of stock in the defendant corporation could not be a consideration for their agreement to hire him as sales manager, because it is not so expressed in the contract. Purchase of the stock could not be consideration for hiring the appellant because they could not legally sell their stock for less than par value, nor could he purchase it for less than par value. Constitution, Art. XII, sec. 8; Laws 1925, p. 168.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellant (plaintiff) sued respondent (defendant) in the Circuit Court of Greene County to the September Term, 1927. Upon respondent's application the venue was changed to Webster County. Appellant's petition was in three counts. The second and third counts, which respondent did not contest, were for money advanced in the respective sums of $ 100 and $ 17.50.

Respondent filed a demurrer to the first count of appellant's petition upon the ground that it failed to state a cause of action. The demurrer was sustained, and appellant refusing to plead further, judgment was rendered against him upon the first count. Motions for a new trial and in arrest of judgment were overruled and appellant was granted an appeal in the Springfield Court of Appeals. The latter court transferred the cause to this court for the reason that the amount sued for in the first count was $ 8,100, together with interest. The first count of the petition is for damages for breach of contract of employment of appellant by respondent. The contract was in writing. It is set out at large in the petition and is as follows:

"'THIS CONTRACT AND AGREEMENT entered into this 26th day of November, 1924, between The Ozark Poultry Supply Company (a corporation chartered under the laws of the State of Missouri), party of the first part, and Marion T. Fullington, party of the second part,

"'WITNESSETH:

"'That in consideration of moneys paid into aforesaid corporation for stock in same and service to be rendered by said Marion T. Fullington, the aforesaid corporation hereby agrees to place said Marion T. Fullington in charge of all sales as General Sales Manager from and after November 26, 1924, and to pay said Marion T. Fullington fifteen per cent (15%) commission on the gross sales of all products manufactured or distributed by aforesaid corporation, their heirs or assigns, and in addition thereto a drawing account of sixty dollars ($ 60) per week payable weekly in advance on and after January 1st, 1925, said sixty ($ 60) per week to be deducted from total commissions accruing to said Marion T. Fullington at the end of each three months' period thereafter.

"'It is further agreed in consideration of the foregoing that said Marion T. Fullington is to devote his entire time and attention to the business of the aforesaid corporation if and when in his opinion and judgment the affairs of the aforesaid corporation require it; it is further agreed and understood that said Marion T. Fullington is to use his own judgment as to the time spent in the office and the time spent on the road.

"'It is further agreed that said Marion T. Fullington will be made a member of the Board of Directors of the aforesaid corporation effective December 1st, 1924.

"'It is further understood and agreed that this contract and agreement remains in full force and effect for a period of five (5) years from November 26th, 1924, and thereafter until six (6) months' advance notice has been given from either party to the other.

"'Signed this 26th day of November, 1924.

"'THE OZARK POULTRY SUPPLY COMPANY,

"'By:

"'(Signed) Seth T. Woods, * President.

"'(Signed) R. E. McBride, * Sec'y-Treas.

"'(Signed) M. T. Fullington, General Sales Manager.

"'(Signed) J. E. McQuade, Witness.'"

The first count of the petition, after alleging the contract in terms, pleaded it according to its legal effect as appellant interpreted it, and alleged that appellant entered upon the discharge of his duties as General Sales Manager for respondent; that he gave his time and...