Homire v. Stratton & Terstegge Co.

• Decision Date: 12 March 1914
• Citation: 157 Ky. 822,164 S.W. 67
• Parties: HOMIRE v. STRATTON & TERSTEGGE CO.
• Court: Kentucky Court of Appeals

164 S.W. 67

157 Ky. 822

HOMIRE v. STRATTON & TERSTEGGE CO.

Court of Appeals of Kentucky.

March 12, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by L. W. Homire against the Stratton & Terstegge Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Chas Carroll, of Louisville, T. C. Carroll, of Shepherdsville, J M. Lee, of Louisville, and M. M. Logan, of Frankfort, for appellant.

Gibson & Crawford, of Louisville, for appellee.

HANNAH J.

In June, 1905, appellant, L. W. Homire, approached Mr Terstegge, an officer of appellee company, upon a proposition of establishing a branch or department of the then business of appellee company, which negotiation led up to the execution of the following written contract:

"Louisville, Ky. July 25, 1905.

"Memorandum: The Stratton & Terstegge Company agree with L. W. Homire that Homire is to have charge of the sales and advertising of the Kentucky Stamping Company, a department of the business of the Stratton & Terstegge Company, to be devoted to the marketing of mail boxes, incubator goods, and such other lines as it may appear to the company advisable to manufacture for this department. Homire is to receive a salary of fifty dollars per month; and this is to represent the limit of his compensation in case Stratton & Terstegge Company decide at the end of six months, or sooner, to discontinue this agreement. If, however, after a period of six months, they decide to continue under this arrangement, the said Homire's salary is then to be one hundred dollars per month, which is to apply from the beginning, with such participation in the profits as Stratton & Terstegge Company may see fit to allow him. This agreement to be in force from August 1, 1905. [Signed] Stratton & Terstegge Company, by H. Terstegge, President. L. W. Homire."

In due time, Homire began work under this contract. On January 8, 1906, a little over five months after the contract became effective, appellee company wrote appellant a letter in which it was said: "We have faith enough in this matter to wish to continue the contract, but not at the increased price until some business shall have developed showing there will be at least sufficient gross profit to take care of the expenses incurred at even the low salary basis. Please advise if it will be agreeable to extend the six months term to nine months or one year preferably, before we are to decide about continuing the contract on the higher salary basis, as in our opinion it will come nearer taking six months than three months additional time to determine the success or failure of the venture."

To this letter appellant replied on January 13, 1906, in a letter in which he said: "As to the contract, will say the matter of whether the increased salary goes into effect, or rather is settled upon, now or later, does not make very much difference to me. I feel very confident that the whole thing will come out all right. *** So it will be all right to defer the matter of my compensation until later. *** I want to develop these lines and to do so with the greatest economy. To do so under a year would be too much to expect, and I would like to feel that I will have until a year from the 1st of February, at which time our first six months expires, to see what there is in it."

Shortly after this letter was received by appellee, it was verbally agreed between appellant and appellee company that the trial period should be extended until February 1, 1907, a year from the expiration of the six months period fixed in the contract in writing. Appellant continued in the service of appellee company, receiving $50 per month each month for his services, until February 13, 1907, on which date he wrote appellee company a letter calling attention to the fact that the time fixed had expired. On March 1st appellee company responded in a letter in which it was said: "If we must face a larger expense, now that the incubator season is over and it will not be possible to get returns until way next fall, think we will be forced to decide to discontinue the contract between us. *** We are sorry that the conditions and your necessities are such that we feel we must close the contract, for we assure you that we want to be just to you, and therefore were willing to continue in the hope that we would finally see profit; but when there is no profit, and nothing but abuse, it is probably the best for both of us that the agreement should terminate."

Appellant testified that he looked upon this letter as a dismissal. He testified as follows: "I looked on the letter as a dismissal, and went to work to get my property out of the department and move it home, and about 4 o'clock that afternoon Mr. Terstegge came up there and asked me what I was doing. I told him I got his letter and I was moving out. He said he didn't mean it that way. He said he thought there ought to be some talk about it. I told him I didn't understand it that way; there had been enough talk; that I supposed his letter was a dismissal, and I was taking it that way; and as for the back pay I told him he was already a month late on his contract, but I would accept it. I demanded that back pay ever since. Well, that was 4 o'clock in the afternoon. At the close of his office hours we talked until about 11 o'clock that night, and never came to any conclusion except this: That he would go exactly according to contract; that is, pay me $100 a month from February 1, 1907, but he wanted me to let him off for the back pay, and I insisted that I would not do it. We talked until about 11 o'clock, about seven hours, about it, and when I left him at 11 o'clock that night he said he would pay me $100 a month commencing February 1, 1907, according to the contract, and asked me to see if I could not make some arrangement about that $900 back pay that would be mutually agreeable."

Thereafter appellant continued in the service of appellee company receiving $100 per month from February 1, 1907, until some time in 1912; and he states that he continued to demand the back pay until his services with appellee company terminated. On October 28, 1912, he sued appellee company in the Jefferson circuit court for the said $900; and, at the close of the evidence of the plaintiff, the court...