Hubbard v. Turner Department Store Co.
| Decision Date | 08 January 1926 |
| Citation | 278 S.W. 1060,220 Mo.App. 95 |
| Parties | CHAS. A. HUBBARD, JR., RESPONDENT, v. TURNER DEPARTMENT STORE COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Greene County.--Hon. Warren L White, Judge.
REVERSED AS TO JUDGMENT ON PLAINTIFF'S PETITION AND AFFIRMED AS TO JUDGMENT ON DEFENDANT'S COUNTERCLAIM.
Frank B. Williams, of Springfield, for appellant.
(1) The alleged written agreement for a part of the profits of defendant's business as extra compensation to plaintiff for his services is so vague and indefinite that it will not support plaintiff's claim for extra compensation or the verdict of the jury therefor. 1. If an agreement is so uncertain and ambiguous that the court is unable to collect from it what the parties intended, the court cannot enforce it, and since there is no obligation there is no contract. Blaine v. Knapp, 140 Mo. 241; Luckey v Railroad, 133 Mo.App. 593; 9 Cyc., p. 245, footnote 26; 9 Cyc., pp. 248-249, footnotes 42 and 43; 18 R. C. L., p 494, sec. 4, footnote 12; Wesson v. Horner, 25 Mo. 81; Burks v. Stam, 65 Mo.App. 455; Jones v. Durgin, 16 Mo.App. 370; Browning v. Railroad, 188 S.W. 143; Vorhees v. Louisiana Purchase Exp. Co., 243 Mo. 418. 2. A proposal in writing, which is so indefinite that it cannot form the basis of a contract without further specifications does not make a binding contract. Lee v. Dodd, 20 Mo.App. 271; Whedon v. Ames, 28 Mo.App. 243. 3. There was no meeting of the minds of the parties in this case as to: (a) The profits that were to be shared, whether of all departments of the store or only the furniture department, where plaintiff was principally employed. (b) The percentage of profits to which plaintiff would be entitled as and for his share. (c) The kind of profits subject to division, whether net or gross, and how arrived at. (d) The time when an account or invoice should be taken of the business, whether by the month, the calendar year, fiscal year, or the entire period of plaintiff's employment. 4. The construction of a written contract is a matter of law for the court. Mueller v. Nat. Flour and Milling Co., 243 S.W. 420. Lancaster v. Elliott, 28 Mo. 86, 92. 5. Courts can only enforce agreements as written and cannot write provisions into contracts not written by the parties to them. Blanke Bros. Realty Co. v. Amer. Surety Co., 247 S.W. 797. (2) This being an action for salary and other sums due under an alleged contract of employment, plaintiff had the burden of proof to present evidence from which the court and jury could reasonably arrive at a satisfactory conclusion as to the state of the account. Hunt v. Lehrack, 245 S.W. 52. (3) The petition does not charge that plaintiff was wrongfully discharged before the end of the month, therefore the petition does not support the verdict as to salary for the last half of February, and as to this item does not state facts sufficient to constitute a cause of action. There is no evidence to support this part of the verdict and the court erred in refusing to so instruct the jury as requested by defendant in Instruction "A," and in instructing to the contrary in Instruction No. 1. 1. The plaintiff cannot recover on a cause of action not pleaded. Summers v. Ins. Co., 90 Mo.App. 691, 701 and cases cited. 2. It is error to give an instruction not supported by the evidence. Cross v. Railroad, 186 S.W. 1130; Railroad v. Couch, 187 S.W. 64; Burns v. Polar Wave Ice Co., 187 S.W. 145; Lord v. Delano, 188 S.W. 93. (4) Plaintiff was hired at $ 125 per month. This constituted a hiring at will terminable by either party at any time, and no action can be sustained as for wrongful discharge because plaintiff's employment was terminated before the end of the calendar month. Brookfield v. Drury College, 139 Mo.App. 339, 365 and cases cited; Minter v. Dry Goods Co., 187 Mo.App. 16; Mulvy v. Anderson, 187 Mo.App. 430; Davis v. Ins. Co., 181 Mo.App. 353; Finger v. Brewing Co., 13 Mo.App. 310; 5 Page on Contracts, sec. 2640.
Thomas H. Gideon, of Springfield, for respondent.
(1) Valid contracts may be made by letters and telegrams. 9 Cyc., p. 247 and footnote 33; Whaley v. Hinckman, 22 Mo.App. 483; Logan v. Waddle, 238 S.W. 519; Egger v. Nesbit, 122 Mo. 667; Tippin v. Telegraph Co., 194 Mo.App. 80; Jerome Lumber Co. v. Davis Bros. Lbr. Co., 255 S.W. 906; Price v. Atkinson, 117 Mo.App. 56. (2) Does the letter and telegrams in the case at bar constitute a valid and binding contract? 9 Cyc, p. 250 and footnote 47; Huse v. Heinse, 102 Mo. 245, 250; Gale v. Carpet Co., 182 Mo. App., 520; Northup v. Colter, 150 Mo.App. 647; Lancaster v. Elliott, 28 Mo.App. 92. (3) A valid contract being established, on who is the burden of showing the profits of appellants business during said period? Huse v. Heinse, 102 Mo. 250; Central Oil Dev. Co. v. Sinclair Oil and Gas Co., 253 S.W. 328; Matterson v. Amarillo Oil Co., 253 S.W. 908, 912; 9 Cyc, pp. 590 and 761. (4) Can the respondent recover his salary for the last half of February, 1923? Minter v. Dry Goods Co., 187 Mo.App. 26; Davis v. Insurance Co., 181 Mo.App. 357.
Plaintiff brought suit on an alleged written contract for services, claiming $ 1500 as an accumulated bonus over a period of thirty months, from September, 1920, to February 14, 1923, and $ 62.50 for one-half month's salary as an employee of defendant. Plaintiff, by his petition, admits an indebtedness to defendant on an open account in the sum of $ 683.44, leaving a balance due him in the sum of $ 879.06, for which he prays judgment. The answer was a general denial and counterclaim amounting to $ 683.44 for goods, wares and merchandise purchased from defendant by plaintiff. On trial before a jury plaintiff obtained a verdict in the sum of $ 788.53 on his petition and defendant obtained a verdict in the sum of $ 732.46 on its counterclaim. Judgment was entered accordingly. From this judgment defendant has appealed.
Defendant assigns as error the refusal of its instruction in the nature of a demurrer to the evidence offered at the close of the entire case. This necessitates a review of the evidence. It seems that on the 31st day of July, 1920, plaintiff was living in Mitchell, S.D. He had previously been in the employ of defendant in Springfield, Missouri, as a furniture salesman, but quit that employment in June, 1919, in order to take a position with his brother in South Dakota at an increased salary, the amount of which he communicated to defendant's representative at that time, who advised him to accept same. The alleged contract on which plaintiff's claim is founded is evidenced by a letter and four telegrams in words and figures as follows:
Acting on these telegrams plaintiff returned to Springfield and worked for defendant from the latter part of August, 1920, continuously, until February 19, 1923, receiving as salary $ 125 per month, and no more, except on one occasion when his account was credited with $ 41.87 from the earnings of the furniture department for the year 1921. After plaintiff came to work for defendant in response to these telegrams nothing was said or done by either plaintiff or defendant in regard to the bonus mentioned in the telegrams, except in the one instance above related when plaintiff's account was given credit. Plaintiff testified he was relying solely on the telegrams to prove his contract with defendant and that there was no other agreement. If then a proper construction of these telegrams fails to establish a binding and enforceable contract as to the bonus for which plaintiff lays claim, plaintiff's case must fall, in so far as the bonus is concerned. There is little, if any, evidence that the parties themselves placed their own construction on this contract, but even if there was such evidence, the rule that the construction placed on a contract by the parties thereto is evidence of what both parties intended the contract to mean, does not apply where there was no contract in the first instance. [Lumber Co. v. Leach, 255 S.W. 955.]
The telegram of August 16, 1920, marked "Exhibit D," is the only one which contains any stipulations relative to salary or bonus. It was written in reply to plaintiff's telegram of August 14, 1920, in which he inquired as to what defendant had to offer. The salary of $ 125 per month was fixed by the telegram and...
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