Graham v. Kesseler

• Decision Date: 23 December 1916
• Docket Number: (No. 8492.)
• Citation: 192 S.W. 299
• Parties: GRAHAM v. KESSELER.
• Court: Texas Court of Appeals

192 S.W. 299

GRAHAM v. KESSELER.

(No. 8492.)

Court of Civil Appeals of Texas. Ft. Worth.

December 23, 1916.

On Motion for Rehearing, January 27, 1917.

Appeal from Young County Court; W. P. Stinson, Judge.

Suit by F. A. Kesseler against R. G. Graham. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Motion for rehearing overruled.

C. W. Johnson, of Graham, and Miller & Miller, of Ft. Worth, for appellant. B. W. King and C. F. Marshall, both of Graham, for appellee.

BUCK, J.

This suit was instituted on September 25, 1915, by appellee against appellant, to recover the sum of $995, alleged to be the balance of salary due, at $7 per week, for 155 weeks, prior to the filing of the suit, after the payment of $18 per week, which, in effect, is admitted in the petition, and after a credit of $90 for lost time had been allowed. A trial, in the county court of Young county, October 28, 1915, resulted in a verdict in favor of plaintiff for the full amount, upon which judgment was rendered, and the defendant appeals.

The petition alleged that on September 26, 1912, plaintiff and defendant entered into a contract, whereby defendant employed plaintiff to work for him as editor of the West Texas Reporter for the sum of $18 cash per week, and in addition thereto plaintiff was to have a choice of one-half of the profits of said newspaper, if any accrued, or the additional sum of $7 per week added to his salary of $18 per week, as plaintiff might see fit to elect at any reasonable time during his employment. It was further alleged "that at many times during the year 1914, plaintiff elected, and here now elects, to have defendant pay him the balance due on said contract," and that at the time stated plaintiff elected on his option, and made demand on the defendant, that he pay him the balance of his salary, which defendant refused.

Defendant, after a general denial, pleaded the statute of two years' limitation, and further alleged that plaintiff had worked for the defendant prior to September 26, 1912, in a job printing establishment at a weekly salary of $18; that on said date, plaintiff and defendant agreed to establish a weekly paper to be called, The West Texas Reporter, the plaintiff to act as editor thereof; that neither party had extra capital, but that the defendant had commercial credit, while the plaintiff was without such credit. By the terms of the contract, the defendant was to purchase the necessary equipment on such terms as he could secure, and the plaintiff was to continue at a weekly salary of $18, but was obligated to allow out of such salary the sum of $3 per week to be applied as a sinking fund to pay out the plant, together with the expected earnings of the enterprise. That plaintiff and defendant as prospective partners were to continue their labors on the newspaper until the created indebtedness "had been cleared according to the terms of said weekly sinking fund," together with the earnings of the paper, whereupon the plaintiff would become the owner of a one-half interest in said enterprise. It was further alleged that the plaintiff failed to allow out of his weekly salary the $3 provided as a sinking fund, but in fact used the entire weekly stipend. Defendant further alleged that the plaintiff had made no demand upon him for said $7 per week extra salary, and that defendant had never made any promise to plaintiff to pay such extra salary, but that, on the other hand, the plaintiff had, on or about October 1, 1915, without any notice to defendant, quit work and abandoned the contract, whereupon full and final settlement was made with plaintiff, and the balance of his salary was paid to the plaintiff in a check, for the full amount, which was accepted by the plaintiff in full settlement of all demands, and that hence there was accord and satisfaction between plaintiff and defendant.

Only sufficient evidence will be outlined herein to make clear the discussion of the questions presented for review. Plaintiff testified that he began work for defendant as editor of said newspaper on September 26, 1912; that he had worked for defendant theretofore as a job printer for ten months; that by the terms of the optional contract, plaintiff was to work for Graham at $18 per week, and to have an option at the end of the year of $7 per week extra salary, payable in cash, or to have an interest in the business with this $7 per week credited to him as a payment on such business, provided plaintiff was suitable to defendant as editor of said paper; that when the year had closed, on September 26, 1913, he made demand on the defendant for the interest in the business, but that defendant refused to allow plaintiff any interest in the business, and to properly credit plaintiff's account for the extra $7 per week for the past year, and that thereupon plaintiff demanded of defendant the year's salary at $7 extra per week, but that defendant failed and refused to pay the same "later on"; that on October 1, 1914, the government required a statement of the ownership of the paper to be furnished, and that at that time plaintiff demanded that he be shown as part owner of such paper in said statement, but that defendant refused this request, for the stated reason that a part of the equipment was under mortgage, and that, as the mortgage was given by defendant as the sole owner, defendant did not think it best to make it appear that he had sold or parted with a part of his interest in the establishment, whereupon plaintiff made demand on him for the back salary, and defendant never denied owing it, but said that it was too much money to give up at that time; that defendant got behind with plaintiff's salary at $18 per week, and that plaintiff at various times demanded of the defendant the $7 extra salary, and defendant promised to arrange the matter, but never did, and the plaintiff had to quit work because the defendant would not pay him what he was due; that again, in April, 1915, when the same statement as to the ownership of the paper was required by the government, plaintiff demanded a showing of his interest in the business, but defendant again refused to make such showing; that plaintiff prepared a statement showing his interest in the business, and requested the defendant to sign the same, but that the latter refused so to do. He further testified that:

At said time "I told him that, as he did not and would not sign the statement, I would claim the $7 which he had promised. At the time I made the demand for the extra salary, I did not waive my right to my interest, but saw that Mr. Graham was not going to allow me any interest, and I then took care of the other phase of the original contract. The 20th day of September, 1915, the defendant had indorsed for me creditors' bills, and when he settled he deducted from my $18 per week wages these bills, with my consent. He did not otherwise pay those bills to Street & Co., the John Kisinger note. I arranged that they be paid out of my future salary. When I quit work, he settled all of the rest of the claims on the $18 per week basis, and made out a check for the balance, which was for $6.54. I claimed $3 more, and the defendant paid it in cash. I did not cash the check, because I thought that it would effect a full settlement, when in fact it was not a full settlement, as the check stated it was in `full of salary.' Thereafter, on the 25th day of September, 1915, this suit was brought."

Appellant's first assignment is directed to the admission of the following testimony by plaintiff on redirect examination:

"I do know that he (defendant) has some extravagant habits and that he has taken money out of the business to buy beer."

Defendant objected to this testimony as irrelevant and immaterial, and calculated to prejudice the defendant before the jury, and that it was intended for that purpose, and injected personalities into the suit, there being no evidence that the use of the beer in any way affected the business, or in any way relaxed the defendant's effort to make the business a success, this being a suit for a specific sum of money alleged to be due as salary, and that the use of the beer did not tend to establish any issue, even if it did affect the revenues, of which there was no evidence. The court approved defendant's bill of exception, complaining of this action, with the following statement in the way of a modification:

"That plaintiff testified that he knew that money was taken out of the business by defendant and spent for beer."

We are of the opinion that this testimony was improperly admitted, and that it was reasonably calculated to prejudice the rights of defendant. Plaintiff in this suit was seeking to recover a sum of money which he alleged was due him as extra salary, and there is no allegation contained in plaintiff's petition of mismanagement of business on the part of defendant, or the misuse or waste of the revenues derived therefrom. While defendant did allege in his answer that on account of the editorial attitude of the paper on local matters and conditions, and the withdrawal of patronage due thereto the paper had not prospered, and that its indebtedness was as great at the time of the filing of the suit as it had been at any time, and no profit had been earned, and that in spite of such failure of profits, and the additional loss from the wear and tear of the machinery and other equipment purchased and used in the business, the defendant had kept plaintiff on the pay roll, etc., yet we do not think that such pleadings, apparently surplusage, injected into the case any issues which would have made the testimony objected to admissible. Subject to defendant's plea of limitation, the only issue presented is whether the contract as claimed by plaintiff was made. It is not contended by appellee, nor is it stated by the court in his quoted qualification of appellant's exception, that the testimony complained of was...