Kellogg v. Citizens' Ins. Co. of Pittsburgh

• Decision Date: 15 December 1896
• Citation: 69 N.W. 362,94 Wis. 554
• Parties: KELLOGG v. CITIZENS' INS. CO. OF PITTSBURGH.
• Court: Wisconsin Supreme Court

94 Wis. 554

69 N.W. 362

KELLOGG

v.CITIZENS' INS. CO. OF PITTSBURGH.

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by William De W. Kellogg against the Citizens' Insurance Company of Pittsburgh to recover for services rendered defendant by plaintiff as traveling agent. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Plaintiff worked for the defendant from April 1, 1889, to April 1, 1890, as traveling agent, at $1,200 per year, and from April 1, 1890, to April 1, 1891, at $1,500 per year. At the end of the second period mentioned, nothing was said about any change in salary, and plaintiff continued to work to December 14, 1891, and then wrote defendant, saying that he expected to handle the business for the next year in Illinois, Wisconsin, Minnesota, Iowa, and Missouri, thereby bringing his percentage up to $100,000 for the year; that he wanted $1,800 per year and expenses, or $1,500 and expenses and 5 per cent. of the net proceeds, or $1,500 and 5 per cent. of the gross premiums over $65,000. Defendant replied December 17, 1891, promising consideration of the matter. December 21, 1891, plaintiff replied, urging consideration of the proposition of December 14th, for a contract to begin January 1, 1892. December 23d plaintiff again wrote defendant, urging consideration of the matter. January 26, 1892, defendant replied to plaintiff's proposition by saying that the salary should be $1,800, as requested. Plaintiff worked under this arrangement through the years 1892, 1893, and to January 18, 1894, when he was informed by letter that he would be discharged March 1, 1894. February 1st he replied, calling attention to the existing contract. March 1, 1894, he was discharged. In January thereafter, he brought this action to recover compensation from the time of his discharge up to January 1, 1895, at $1,800 per year. The answer took issue on the alleged facts, making out the existence of a contract between the parties, to work for defendant, from January 1, 1892, to January 1, 1893, at $1,800 per year, and a continuance of the contract for 1893 and 1894 by the acts of the parties. The case was tried by the court. The court found the existence of the contract as alleged, and that plaintiff was entitled to recover nine months' wages, at $1,800 per year. Defendant excepted to the findings of fact in regard to the contract, and to the conclusion of law. Judgment was entered in plaintiff's favor, according to the findings, from which this appeal was taken.

Dunwiddie & Wheeler, for appellant.

John C. Rood, for respondent.

MARSHALL, J. (after stating the facts).

Several errors are assigned on the rulings of the trial court respecting appellant's objections to testimony, but an examination of each of such alleged errors fails to disclose anything worthy of discussion in this opinion. In that regard the case appears to be free, at least, from any prejudicial error.

The only other errors assigned are on exceptions to the findings of the trial judge on questions of fact. It is not controverted but that, if appellant and respondent contracted that the latter should serve the former in the capacity of traveling agent from January 1, 1892, to January 1, 1893, at a yearly compensation of $1,800, a continuance of the employment for 1893, and into the next year, for a considerable period of time, without notice from appellant of any desired change, warrants the finding that the parties impliedly contracted for a continuance of the service for the year 1894 at the...