Lindner v. Cape Brewery & Ice Co.

• Decision Date: 26 May 1908
• Court: Missouri Court of Appeals
• Parties: LINDNER v. CAPE BREWERY & ICE CO.

111 S.W. 600

131 Mo. App. 680

LINDNER v. CAPE BREWERY & ICE CO.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

1. MASTER AND SERVANT—CONTRACT OF EMPLOYMENT —BREACH BY SERVANT.

In an action by a servant for breach of contract of employment, it appeared that plaintiff had agreed to perform the duties of brew-master, and act as foreman of defendant's bottling department. One of defendant's employés in the bottling department, having been discharged by plaintiff for a trivial matter, was reinstated by defendant, after which plaintiff refused to perform his duties in that department on the repeated requests of defendant. Held, that this constituted a breach of contract, justifying plaintiff's dismissal, the provision broken not being an independent covenant, for breach of which defendant might seek damages.

2. SAME—DISCHARGE OF SERVANT—RIGHT TO WAGES.

Where a contract of hiring was for a definite period, for a round sum payable in installments, the servant, on being discharged for breach of contract, was entitled to recover the salary due and unpaid at the date of the discharge.

3. SAME.

Where a servant is discharged for breach of contract of employment, he is not entitled to payment for any period he has worked short of a full installment period.

4. SAME — CONSTRUCTION BY PARTIES.

Where a contract of employment plainly showed that an installment of wages accrued on a certain date, no act of the parties could construe away such fact.

5. ESTOPPEL—POSITION IN LITIGATION.

If a party has done an act so inconsistent with the purpose of insisting on a defense as to induce the belief that he would not insist on it, the right is waived where it is technical rather than substantial; nor need the waiver be supported by a consideration.

6. MASTER AND SERVANT—DISCHARGE OF SERVANT —DEFERRED INSTALLMENTS OF WAGES.

A contract of employment for a period of two years provides that the servant should receive $3,000 per year; $100 being payable semimonthly, and $600 at the end of each year. After several months' work, he was discharged for breach of contract, but up to that time his services were satisfactory. When discharging him, defendant offered him the installment of the wages due, and a proportionate part of the deferred installment, which he refused. Held that defendant was liable for such part of the deferred installment as had been earned.

Appeal from Cape Girardeau Court of Common Pleas; Benj. F. Davis, Judge.

Action by Andreas Lindner against the

Cape Brewery & Ice Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

D. B. Hays, for respondent.

GOODE, J.

By a contract entered into January 2, 1905, plaintiff engaged for service in defendant's brewery. The contract was in writing and its terms are clear. Plaintiff agreed to continue in the employ of defendant for two years from the date of the instrument at defendant's brewery in the city of Cape Girardeau, perform therein the duties of brewmaster and act as foreman of the bottling department, diligently serve defendant in such other business as its manager might direct, and carry out the directions of said manager in the performance of all services. Other stipulations not material to the present case follow, and then a recital that the contract was made for the purpose of obtaining the exclusive services of plaintiff, his special knowledge, skill, and experience, and an agreement that he would bind himself not to engage in brewing within said two years except as an employé of defendant. In consideration of those things defendant bound itself to pay plaintiff $3,000 a year as follows: One hundred dollars on the first and sixteenth days of each month during the existence of the contract, and $600 on the second days of January, 1906 and 1907. Plaintiff worked under the contract without serious dispute with defendant or its other employés until September 1, 1906, and was paid for his services to that date. He had been somewhat rough in his speech to the employés in the bottling department, but no open rupture between plaintiff and any of them occurred until about September 13th. On said day he observed in said department a few bottles which had been washed but not thoroughly cleansed, as he thought, and spoke about their condition to an employé named Kimmick, who was called the "first man" in the department, at the same time applying an offensive epithet to Kimmick. The latter said it was impossible to wash the bottles clean and make 18 barrels of beer a day; meaning the brewing was pushed beyond the capacity of the men. A few words passed and plaintiff told Kimmick to go to the office and get his time; in fact, paid him and laid him off from work. This was early in the forenoon, and at the time William H. Coerver, the president and general manager of the brewery, was attending to business elsewhere in the city. The employés of the building belonged to a trade union, and at noon they notified the general manager they would all quit work if Kimmick was discharged. It should be stated plaintiff had power to suspend any employé, but the final decision as to whether the suspension should stand or not rested with Coerver. A circus was to come to town the next day and a big sale of beer was expected. Some of the beer in the vats needed care to prevent it from spoiling, and a contract had been made between defendant and a brewing concern in Ste. Genevieve by which a large quantity of beer was to be furnished by defendant during the next few months and it would have to be brewed. These facts made Coerver unwilling to lose the services of either plaintiff or the other employés. According to Coerver plaintiff insisted on his letting the employés go, saying he (plaintiff) could get others in Cape Girardeau, Bellville, or St. Louis to run the brewery. Plaintiff insisted, too, there was so much beer on hand it did not matter if the brewery was idle a while. Coerver reinstated Kimmick, and refused to let plaintiff hire a new first man for the bottling department. After these occurrences plaintiff refused to enter said department of the brewery or to act as superintendent of the men there, though he says he was willing to do so if Kimmick would come to him and agree to obey his orders. The testimony of the other witnesses who spoke on this issue was that plaintiff refused absolutely to go about the bottling department, or have anything to do with the men who worked there.

We quote enough of plaintiff's testimony to show his attitude according to his own statements: "I didn't go into the bottling shop any more because if I go in these fellows run me out with the hose. * * * Q. I will ask you if you did not refuse after that —when you said he didn't take your orders— if you didn't refuse to go into the bottling department? A. I told Mr. Coerver he didn't wash the bottles clean any more, and then I fired him, and Mr. Coerver hired him back again, and then I said to Mr. Coerver, `I am not willing to go into the bottling department any more until Sam Kimmick tells me he will follow my orders; in that case I would be willing to work with him.'"

In rebuttal plaintiff testified as follows:

"Q. Isn't it a fact that you told Mr. Coerver when these men struck, that you—if he would retain that man—wouldn't go down to the bottling department? A. I told Mr. Coerver I would be willing to work down there if Sam Kimmick would obey my orders; but he never came to me; but later on if he would have come back and said, `I have done you a little wrong,' I would have been willing to work with him."

The substance of plaintiff's testimony is that he refused to go into the bottling department after Kimmick was reinstated, unless the latter would come to him, apologize, and agree to obey his orders, and that he (plaintiff) did not again enter said department, though Coerver endeavored to persuade him to do so. The testimony of Coerver agrees with plaintiff's, except it shows in detail the efforts of Coerver to induce plaintiff to resume superintendence of the bottling, and presents plaintiff's refusal as obstinate and perverse. On Saturday, September 15th Coerver got the board of directors together and an attempt was then made to bring about a settlement; but the men persisted in saying they would quit work if Kimmick was not allowed to remain, and plaintiff refused to have anything to do with the bottling department unless Kimmick was dismissed. Finally the directors treated plaintiff's conduct as a refusal to perform part of his contract of service, and on Monday, September 17th, when he returned to the brewery, Coerver offered him a check for $525, telling him the directors had decided to ask for his resignation. Plaintiff refused to resign or take the check and Coerver told him if he would not accept the check he would get nothing. Plaintiff sought an attorney who prepared a letter to Coerver, stating that Lindner had been discharged on Saturday the 15th, and demanding his reinstatement or pay in full as per contract to January 2, 1907. The letter said Lindner was ready and willing to carry out his part of the contract, and if Coerver refused to permit him to serve the company in the capacity of brewmaster and foreman of the bottling department, payment in full would be expected of all damages that might accrue by reason of the company's breach of the contract. This letter was presented to Coerver by plaintiff in person on September 18th, but Coerver declined to take plaintiff back into service, as he had the right to do if plaintiff had been discharged for lawful cause. This action was instituted to recover $1,400 alleged to be due under the contract; that is to say, $100 every two weeks from September 1st to January 1st, and $600 which would fall due January 2d. The petition states the terms of the contract, and alleges plaintiff complied with it in every particular, but defendant failed to comply, by discharging him, demanding he leave the premises...