Hughes v. The Toledo Scale and Cash Register Company
| Decision Date | 18 April 1905 |
| Citation | 86 S.W. 895,112 Mo.App. 91 |
| Parties | HUGHES, Respondent, v. THE TOLEDO SCALE AND CASH REGISTER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
Plaintiff and defendant (a corporation) entered into the following contract:
Immediately after making the contract plaintiff entered upon the performance of his duties, as agent for the defendant, and continued in defendant's employ until November twenty-third, when defendant rescinded the contract. It paid plaintiff's salary and expenses up to December first, having prior thereto taken possession of its goods, etc., in plaintiff's office.
The petition alleges the wrongful discharge of plaintiff by defendant, his inability to find other profitable employment, and asks for judgment for his salary for the balance of the term of his employment after his discharge and for rent of office and other expenses, not necessary to set forth as they were not proven and, presumably, nothing was allowed by the jury for them.
The answer is very voluminous, setting forth among other things that defendant was induced to enter into the contract by false and fraudulent representations, set out in detail, which will be noticed further on; that plaintiff did not give his whole time and attention to the business of the defendant, and divers and sundry other allegations to justify the cancellation of the contract.
The new matter in the answer was put in issue by a reply.
The facts are as follows: Defendant is an Ohio corporation doing business and having an office in Missouri. It is a manufacturer of scales and cash registers and has several competitors in the trade. Plaintiff, at the time the contract was entered into, was a general agent of the Moneyweight Scale Company, of Chicago, having the same territory that he was given charge of by the defendant, which included Missouri, Arkansas, Louisiana, Mississippi and Alabama. In these several States plaintiff had under him active and efficient scale salesmen in New Orleans, Louisiana; Little Rock, Arkansas; Birmingham, Alabama, and Jackson, Mississippi, and at other points. At the time the contract was made, plaintiff had his office at No. 213 North Twelfth street, St. Louis, Missouri, which he testified he had fitted up at a cost of three thousand dollars, and had in his employ a stenographer, the Miss Hart mentioned in the contract. At the time plaintiff was the principal stockholder and president (by courtesy, as he stated) of a corporation known as the American Light & Fixture Company, which had its office with plaintiff at No. 213 North Twelfth street. Plaintiff had some correspondence with the defendant before entering into the contract. He went to Toledo, where defendant's head office is located, and the terms of the contract were agreed upon by him and defendant's general manager and then reduced to writing in the form of a letter. At the time negotiations for the contract were in process plaintiff represented to defendant's superintendent that his office was on the corner of Twelfth and Olive streets, that Olive Street was one of the principal business streets of the city of St. Louis, and that his office was only two blocks from the office of the National Cash Register Company, a rival of defendant's in business, and who maintained an elegantly furnished office on Olive street.
Mr. Theobald, defendant's manager, testified that plaintiff represented to him that his office was as well furnished as that of the National Cash Register Company's. On May twentieth, prior to the making of the contract, plaintiff wrote Mr. Theobald a letter in which he stated: Mr. Theobald further testifies that plaintiff gave him the names of Klapp, Foy, Baar, Yount and Gallagher, as scale salesmen then working under him and selling goods for the Moneyweight Company, who would leave the latter company and work for the defendant if he (plaintiff) should be employed by defendant. Mr. Theobald testified he knew most of these men, by reputation, to be efficient scale salesmen, and the representation that they would work under plaintiff, if he was given a contract with defendant, was an inducement to defendant to enter into the contract; that plaintiff, in his representation, located Baar at Birmingham, Alabama; Gallagher at Jackson, Mississippi, and Foy at Little Rock, Arkansas, but of all those named by plaintiff, Yount only came to the service of the defendant company.
Gallagher testified that he did not authorize plaintiff to represent that he would leave the Moneyweight Company and go to the defendant company; that when plaintiff spoke to him on the subject, he told him that under no consideration would he leave the Moneyweight Company if he could get some changes made in his contract with it, and that he would not consider a proposition to go with him to the Toledo Company, until after he heard from his company; that he heard from the latter company and then notified plaintiff that he had made satisfactory arrangements with the Moneyweight Company.
Baar testified that plaintiff, in June, 1902, approached him with the proposition to work under him for the Toledo Company in case he should succeed in making a contract with said company; that he made no statement directly or indirectly to plaintiff to lead him to believe that he would take employment under him for the Toledo Company.
In respect to Baar, plaintiff testified that he found out he was not a reliable salesman and did not try to get him. Plaintiff's excuse for not engaging the others was that defendant first agreed to pay agents forty per cent commission and afterwards cut the commission to thirty and thirty-five per cent, and he could not employ them on the cut rate commission. Plaintiff testified that in addition to the names of Baar, Gallagher and Foy, mentioned to Theobald, as salesmen, he mentioned the names of Benton, Yount, Fox, Latham and Davis, all of whom signed contracts and went to work under him for defendant. Foy and Klapp both testified that they quit working for defendant because their commissions were cut.
There was considerable correspondence by letter between plaintiff and defendant. This correspondence and the evidence of defendant's agents, who visited plaintiff at St. Louis, tend to show that the St. Louis business was not satisfactory to defendant and that it took exceptions to plaintiff's habits and personal conduct. The evidence further tends to show that the defendant neglected to keep plaintiff's office supplied with scales and other supplies and by cutting the rate of agent's commissions and by raising or threatening to raise the price of the scales, not only crippled its St. Louis business but hindered plaintiff generally in filling orders. There is evidence pro and con that plaintiff gave some of his time to the service of the American Light & Fixture Company. Plaintiff testified that after his discharge he diligently sought profitable employment elsewhere but was unable to find it; that he worked a short time for a typewriter company but found he could make no more than a living at it and quit.
On the measure of damages the court instructed the jury, if the verdict should be for plaintiff, to assess his damages at the contract price for the remainder of the term of his employment after November 30, 1902, deducting any sum which the jury might find from the evidence plaintiff did or might have received for similar services during the term.
Defendant's sixth instruction, as given, is as follows:
"The court also instructs the jury that by the terms of the written contract entered into...
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