Joy v. Peacock

• Decision Date: 08 July 1939
• Docket Number: No. 12744.,12744.
• Citation: 131 S.W.2d 1012
• Parties: JOY v. PEACOCK.
• Court: Texas Court of Appeals

Page 1012

131 S.W.2d 1012

JOY v. PEACOCK.

No. 12744.

Court of Civil Appeals of Texas. Dallas.

July 8, 1939.

Rehearing Denied October 7, 1939.

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

Action by S. E. Peacock against M. A. Joy to recover a sum of money with interest thereon allegedly due and owing as salary earned by plaintiff, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.

Judgment reformed in part and, as reformed, affirmed, and judgment reversed in part and cause remanded, with instructions.

Bailey & Hammerly, of Chickasha, Okl., and Bond & Porter, of Terrell, for appellant.

Donald & Donald and J. W. Chancellor, all of Bowie, for appellee.

YOUNG, Justice.

The following statement of the nature and result of this suit in the trial court is taken from appellant's brief, omitting references to the transcript:

"This was suit by the appellee against the appellant for the sum of $4,456.55 with interest thereon claimed to be due and oweing as salary earned by the appellee while employed by the appellant as manager of the Denison Compress, owned by the appellant. It was alleged that the appellee was employed as such manager of the Compress on February 1st, 1927 and that he continued in the employ of the appellant until the 15th day of August, 1936; that the agreed salary was $200.00 a month payable monthly but that on August 30, 1928, the appellant agreed to raise this salary to $300.00 and `desired that plaintiff charge his salary for the preceding twelve months at $300.00 per month instead of $200.00 per month'. The appellee alleged in Exhibit A attached to the petition the amounts that had been received by him on his salary and the amount due him and prayed for judgment.

"The defendant answered by general demurrer, special exceptions, and general denial of the plaintiff's allegations; and also set up various and sundry allegations of irregularity in regard to the expenditure of the funds belonging to the appellant by the appellee, alleging therein that the appellee was the manager of such press with access to the bank account of such press with full power and authority at all times to draw checks and expend the money belonging to such press; and by trial amendment filed, the appellant set up lack of any consideration for the agreement in August 1928 to pay the appellee an additional $100.00 per month for the services which the appellee had already performed during the twelve months preceding the alleged making of such agreement.

"The cause was submitted to the jury on special issues and the jury found in answer to such issues: (1) that M. A. Joy and S. E. Peacock entered into an agreement on or about the month of August, 1928 whereby the salary of S. E. Peacock, as manager of Denison Compress, would henceforth be $300.00 per month, and that such salary raise should date back for the 12 month period theretofore (2) that M. A. Joy and S. E. Peacock entered into an agreement on or about the 1st of December, 1931 whereby the salary of the said S. E. Peacock as manager of the Denison Compress would henceforth be fixed at $200.00 per month; (3) that during the time S. E. Peacock was rendering services for M. A. Joy at the Denison Compress that M. A. Joy had knowledge that S. E. Peacock was claiming compensation at the rate of $300.00 a month from August 1st, 1927 to November 30, 1931; (4) that M. A. Joy, after knowing that S. E. Peacock was claiming compensation at the rate of $300.00 per month from August 1st, 1927 to November 30, 1931, failed to protest such charges while S. E. Peacock continued in his employ; (5) that the trucking expense in connection with the operation of the Denison Compress was expended out of the funds of the Denison Compress with the authority of M. A. Joy; (6) that the Wilcoxson note for $541.00 was paid out of the Compress funds with the authority of M. A. Joy; (7) that the checks introduced in evidence payable to C. E. Wilcoxson were paid out of the Compress funds with the authority of M. A. Joy; (8) that the Rotary Club dues in the sum of $78.75 were paid out of the Compress funds with the authority of M. A. Joy; and (9) that the sum of $46.61 evidenced by a draft payable to J. D. Davis was paid out of the Compress funds with the authority of M. A. Joy.

"Upon such answers of the jury to such special issues, the court rendered judgment that the appellee recover judgment against the appellant in the sum of $4,587.22, with interest thereon from the 1st day of April, 1938 until paid, together with all costs of court."

The record is quite voluminous, the transcript covering 450 pages, and embodied in the amended motion for new trial are matters which form the basis of appellant's 109 assignments of error. However, counsel has performed a commendable service by presenting all assignments in 15 clearly stated propositions, the substance of same being: (1) The agreement pleaded by plaintiff whereby defendant was required to pay an additional $100 per month for the preceding twelve months, after rendition of service for such twelve-month period, was illegal and unenforceable for want of any consideration; (2) the evidence showed plaintiff to have two claims against defendant employer, one of which was valid, being for salary earned, the other, unenforceable for want of consideration; and, in this connection, that all payments for services were made by plaintiff to himself out of defendant's funds, with no opportunity on part of the latter to direct application thereof, hence plaintiff had no legal right to apply any payments to the unenforceable or illegal claims; (3) failure of pleadings and a jury finding to support the judgment fixing the alleged increased salary of $300 per month as beginning August 1, 1927; and error of the court in framing the increase of salary issue in language not supported by the pleading; (4) complaining of the court's refusal to give certain defensive issues as to whether the Wilcoxson checks were for the use and benefit of plaintiff; (5) the suit not being based on a written instrument, and there being no jury finding of interest as damages, the court improperly rendered judgment allowing 6% interest from the date the claims accrued, i. e., August 15, 1936, interest being recoverable only after judgment; (6) objections to certain issues as multifarious, and error in admission of certain evidence, particularly as to 86 letters written by defendant to plaintiff during the course of employment; (7) that the two-year statute of limitations applied to all of plaintiff's claims, except a balance of $270.81.

Plaintiff's employment with defendant at the Denison Compress began February 1, 1927, and continued to August 15, 1936, the initial salary being $200 per month. The material issue (No. 1) is here quoted: "Do you find from a preponderance of the evidence that M. A. Joy and S. E. Peacock entered into an agreement on or about the month of August, 1928, whereby the salary of S. E. Peacock, as manager of the Denison Compress would henceforth be $300.00 per month, and that such salary rate should date back for the 12 months period theretofore?" Under issue No. 2, the $100 increase terminated December 1, 1931, and plaintiff's salary was in the original amount of $200 per month for the remaining term of his employment. It is appellee's contention that under the above findings, he became entitled to $28,100 during his entire service of nine years, six and a half months, and that he had been paid, except for a balance of $4,125—the principal amount in suit. Appellant, on the other hand, in his propositions one to four, generally, contends that the retroactive agreement to pay $100 per month for a twelve months' period in which service had already been rendered, was gratuitous and without consideration, and particularly that (Prop. 3): "Where the uncontradicted evidence shows that the creditor (the employee) had charge and control over the funds of the debtor (the employer) with full right and authority to draw funds therefrom, and he does draw funds therefrom to pay his salary and the creditor has no opportunity when such payments are made to direct the application thereof, the creditor has no right to make application of such payments to an unenforcible and illegal claim which he has or claims to have against the debtor."

It is the opinion of the majority that these propositions should be sustained and that the trial court should not have included the $1,200 in the total amount earned by appellee from February 1, 1927, to August 15, 1936, for the reason that same was admittedly a gratuity, with no element of a consideration, hence, of itself, could not furnish the basis of any enforceable right. See Shear Co. v. Harrington, Tex.Civ.App., 266 S.W. 554; Witt v. Wilson, Tex.Civ.App., 160 S.W. 309; Underwood v. Hogg, Tex.Civ.App., 261 S.W. 556; Stone v. Morrison et al., Tex. Com.App., 298 S.W. 538; 10 T.J., Contracts, Sec. 84, p. 143. Likewise, the majority concludes that the payment of the $1,200 in back salary by plaintiff to himself was not binding upon defendant, under the doctrine of application of payments; the facts of this case falling outside the general rule that when the debtor makes a payment, without exercising his right to direct the application thereof, the creditor may appropriate it to such debts due from the creditor as he chooses. 32 T.J., Payment, Sec. 28, p. 679. The following reasons are advanced for the views just stated: That in this case, the salary payments (including the $1,200 item) were made, not by the debtor, but by the creditor himself out of the debtor's funds. There were no directions by the debtor as to the application of such payments, whether to the regular salary account or to the $1,200 retroactive item. Such payments were not made by the debtor himself, and at the time the several amounts were credited to back salary, there is no evidence, the majority...