Koenigkraemer v. Missouri Glass Co.

• Decision Date: 04 January 1887
• Citation: 24 Mo.App. 124
• Parties: F. W. KOENIGKRAEMER, Respondent, v. MISSOURI GLASS COMPANY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 124

F. W. KOENIGKRAEMER, Respondent,

v.MISSOURI GLASS COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

ROBERT & HITCHCOCK, for the appellant: In suing for a breach of a contract of employment the servant must show due diligence in seeking other employment. Stone v. Vimont, 7 Mo. App. 282; Ream v. Watkins, 27 Mo. 518; Saxonia Co. v. Cook, 7 Colorado, 569. The master may discharge his servant for cause. Sugg v. Blow, 17 Mo. 359.

B. SCHNURMACHER, for the respondent: The servant is bound only to seek other similar employment. Ream v. Watkins, 27 Mo. 518. Instructions which leave the jury to conjecture what is “due diligence” are properly refused. Buel v. Transfer Co., 45 Mo. 562; Anderson v. McPike, 86 Mo. 293; Digby v. Insurance Co., 3 Mo. App. 603.

ROMBAUER, J., delivered the opinion of the court.

On the tenth of April, 1884, the plaintiff entered into a written contract with the defendant to act as its traveling salesman at an agreed compensation of seventy-five dollars a month, and traveling expenses. The contract was originally terminable at the defendant's option on the first of July, or thirty-first of December, 1884, but was, at the close of the year 1884, renewed and continued in force until December 31, 1885.

The parts of said contract which are material to the present inquiry are as follows:

“I agree and promise to serve the Missouri Glass Company, of St. Louis, Missouri, in the capacity of a salesman, energetically, faithfully, and honorably, devoting daily my entire time and best abilities, always to the advancement of their best and most profitable interest, and will thoroughly and regularly canvass, as their salesman, all such territory as they may assign to my care. * * * I am also to make and mail daily reports to said company, as noted on cards furnished for said purpose. * * * A breach of this contract in any of its particulars shall be sufficient reason for above company to at once cancel same.”

The plaintiff was discharged May 1, 1885. On November 21, 1885, he instituted this action, and filed a petition containing two counts, the first to recover a balance of one hundred and fifty dollars, claimed to be due for services performed up to May 1, 1885, and the second to recover damages caused to him by the wrongful discharge. The jury found in favor of the plaintiff on both counts, assessing his damages on the second count, which is the only one in dispute, at $507.52.

On the trial the plaintiff gave evidence tending to show that he complied with the terms of his contract. That, on or about April 23, 1885, he was ordered by the defendant to report at St. Louis, and upon his arrival was told that his services were unsatisfactory. He reported at the office from that time on until May 1, 1885, when he was told he need not call again, that his services were no longer wanted.

The defendant gave evidence tending to show that the plaintiff had been drinking in the year 1884. This was, however, prior to the renewal of his contract, and there was no evidence as to his habits in 1885. That the plaintiff failed to furnish daily reports, as required by his contract, in April, 1885. That his entire sales to solvent customers up to the twenty-third, in the month of April, 1885, amounted only to $99.64, and his expenses during the corresponding period to one hundred and ninety-nine dollars. That, at the close of April, 1885, the defendant tendered to the plaintiff $141.70, all that the plaintiff claimed as due up to that time, accompanied with a receipt in full of all demands, which the plaintiff was requested to sign as a condition of payment, and that the plaintiff refused to take the money on that condition.

The plaintiff gave some evidence tending to show that he made efforts to procure similar employment after his discharge, and prior to the institution of the suit, and failed, and the defendant gave some evidence tending to show that it could have given to the plaintiff similar employment during that period if he had applied, but there was no evidence that the defendant had tendered such employment to the plaintiff.

This was in substance all the evidence.

The errors assigned are, that the court excluded proper testimony offered by the defendant; that it gave erroneous instructions for the plaintiff, and refused proper instructions for the defendant.

The court refused to allow the plaintiff to show what the object was of inserting into the contract the clause requiring daily reports. This was no error....