Harrington v. F. W. Brockman Commission Company
| Decision Date | 30 May 1904 |
| Citation | 81 S.W. 629,107 Mo.App. 418 |
| Parties | C. H. HARRINGTON, Respondent, v. F. W. BROCKMAN COMMISSION COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cole County Circuit Court.--Hon. James E. Hazell, Judge.
Judgment reversed.
Silver & Brown for appellant.
(1) It is well settled in this State that an agent or servant employed for an indefinite period of time may be discharged at any time. Such is the legal import or meaning of a contract of that character. Boogher v. Ins. Co., 18 Mo.App. 533; Finger v. Brewery, 13 Mo.App. 310; Evans v. Railway, 24 Mo.App. 114. And it is immaterial that the compensation for the service is so much a day, month or year. (2) The contract in this case is set forth in the letter of plaintiff to defendant, bearing date February 28, 1902, and which was duly accepted by defendant. The legal import of the contract (inasmuch as it fixed no definite period for the employment), was that the employment could be terminated at the will of either party, and such being the case parol evidence was inadmissible to prove a contract to continue until the World's Fair in St. Louis or for any other definite period of time. This case falls within the rule announced by this court in Blake Mfg. Co v. Jaeger, 81 Mo.App. 239; Williams v. Railway, 85 Mo.App. 104; The Delaware, 14 Wallace 579; Schierbaum v. Schemme, 157 Mo. 2. (3) The trial court committed error in refusing to sustain defendant's demurrer to the evidence offered both at the close of plaintiff's case and on all the evidence and also in instructing the jury at plaintiff's request on the theory that there could be a recovery by plaintiff if defendant had abandoned the colored Masonic Lodge building without having given plaintiff a month's notice in writing of its intention to terminate the tenancy asserted by plaintiff to exist between plaintiff and defendant. 6 Lawson on Rights and Remedies, sec. 2784; Kerrains v. People, 60 N.Y. 221; 18 Am. and Eng Ency. Law (2 Ed.), p. 172, (4) What is implied in a contract is as much a part of it as if expressed. State v Gilmore, 141 Mo. 506; Smith v. Tyler, 57 Mo.App. 668; Chapman v. Curne, 51 Mo.App. 40; Boone v. Stover, 66 Mo. 434; 6 Lawson on Rights and Remedies, sec. 2784. (5) Plaintiff's instructions as given by the court are erroneous in other respects. Vegely v. Robinson, 20 Mo.App. 199; Cole v. Armour, 154 Mo. 333; Bender v. Dungan, 99 Mo. 126; Smith v. Transfer Co., 92 Mo.App. 41; Reynold's Evidence (3 Ed.), p. 116; State v. Melton, 8 Mo. 417; Marshall v. Ferguson, 94 Mo.App. 175.
Pope & Belch for respondent.
(1) The evidence as to what transpired after the letter was written and received is a part of the transaction, and was properly received in evidence. And by reference to appellant's abstract of the testimony, it will appear that the testimony was all proper and material to the issues in the case. Bunce v. Beck, 43 Mo. 266; Henning v. Ins. Co., 47 Mo. 425; Lanitz v. King, 93 Mo. 513; Harrison v. Railroad, 50 Mo.App. 332; Sutter v. Raeder, 49 Mo. 297. (2) Under the pleadings in the case and evidence produced, respondent was entitled to go to the jury. Johnson v. Loomis, 50 Mo.App. 142; Cravens v. Hunter, 87 Mo.App. 456. (3) The contention of plaintiff that the instructions were wrong, is based on the theory that the respondent should have been held technically to prove the exact case stated in his petition and none other. Such is not the law. The pleadings raise issues under which all the testimony was admissible, and to which the instructions were pertinent. Smith v. Ham, 51 Mo.App. 433; Estes v. Shoe Co., 155 Mo. 577. (4) Plaintiff's dismissal by defendant without cause was wrongful. And the verdict for plaintiff was for the right party under the evidence. Howard v. Shoe Co., 82 Mo.App. 405; Wilcox v. Baer, 85 Mo.App. 587; Reynolds v. County, 162 Mo. 680; Gildersleeve v. Overstolz, 90 Mo. 518; Trust Co. v. Murmann, 90 Mo. 555.
The plaintiff's petition alleged that, "on the first day of March, 1902, defendant employed plaintiff to conduct the buying and shipping of produce and act as its manager at Jefferson City, Missouri, at the price of $ 12.50 per week for services and $ 7 per week for the services of his son, Arthur, and $ 5 per week for a helper, and $ 13 per month for store rent and such other incidental expenses as might be necessary to the prosecution of said business, said employment to be permanent and last until the World's Fair at St. Louis, Mo., at least, and that defendant accepted such employment, and the terms thereof, as hereinbefore set out, on the seventh day of March, 1902, plaintiff having secured the services of his said son and a good hand for helper as agreed, and having also rented a storeroom for the use of defendant under the terms of the contract, as therein provided and agreed, and having abandoned other business and incurred great expense to enable him so to do, entered the service and employment of defendant under said contract, and brought with him and furnished for defendant the services of his said son, and a good hand for helper, also procured and furnished defendant with a storeroom as agreed and continued in the employment of defendant, discharging all of his duties and obligations under said contract until April 4, 1902, when defendant wrongfully and without notice to plaintiff, discharged him and his said son and the helper he had hired, and refused to further occupy or use the storeroom that plaintiff had secured for defendant at great cost, and from and after April 4, aforesaid, refused to perform the contract aforesaid on its part, by reason of which plaintiff is damaged," etc.
The answer was a general denial with which were coupled several special defenses. There was a trial and judgment for the plaintiff and defendant appealed.
During the progress of the trial the plaintiff was introduced as a witness in his own behalf and by his testimony it was developed that he had made and defendant had accepted the following proposition in writing:
This constituted a contract between the parties and which in its terms is substantially the same as that pleaded in the petition except that it is not therein provided that the plaintiff's employment was to be permanent and last until the World's Fair in St. Louis, at least.
The court permitted the plaintiff, over the objections of the defendant, to testify to various parol negotiations and agreements entered into between himself and defendant prior to the entering into the written contract. This testimony was in part to the effect that plaintiff had rented a business house and that the defendant had said that he would pay the rent plaintiff had agreed to pay and take it off the latter's hands; that he (defendant) wanted plaintiff to "get a hustle on" and as the World's Fair was coming on he would need a great deal of "stuff," and that he (plaintiff) was the man he wanted, and this thing would be continued any way until after the World's Fair etc.; to all of which defendant objected on the ground that as the contract upon which the action was brought was in writing and that parol evidence was incompetent to add to, change, vary or alter it in any particular. But the court overruled defendant's objection and permitted it to go to the jury, "on the theory that the contract in writing was in a letter and might be partly in writing and partly parol."
The contract was not incomplete but was a full expression of the entire understanding of the parties thereto; and therefore it falls within the rule which forbids the admission of parol evidence to vary or alter a written contract. Mfg. Co. v Jaeger, 81 Mo.App. 239; Squier v. Evans, 127 Mo. 514, 30 S.W. 143. And it has been ruled in many cases in this State that in the absence of fraud or mistake--of which there is no pretense in the present case--a complete written contract is a merger of all antecedent or simultaneous agreements between the...
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