McCahon v. Quick Service Laundry Co.

• Decision Date: 26 May 1924
• Docket Number: NO. 15074.,15074.
• Parties: McCAHON v. QUICK SERVICE LAUNDRY CO.
• Court: Missouri Court of Appeals

263 S.W. 238

McCAHON v. QUICK SERVICE LAUNDRY CO.

NO. 15074.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied June 16, 1924.

Appeal from Circuit Court, Jackson County; Charles IL Pence, Judge.

"Not to be officially published."

Action by C. R. McCahon against the Quick Service Laundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stubbs, Stubbs, Wolfe & Sloan, of Kansas City, for appellant.

Philip L. Levi and Carlin P. Smith, both of Kansas City, for respondent.

ARNOLD, J.

This is a suit upon a verbal contract for commissions based upon the net earnings of a laundry operated by defendant in the city of Leavenworth, Kan., and of which plaintiff was the manager during the period for which commissions are claimed.

Defendant, a corporation, was the owner of a plant in Kansas City, Mo., where it operated a general laundry business. Prior to July, 1919, defendant acquired a laundry in the city of Leavenworth, Kan., known as the Community Laundry, which it operated as a branch of its Kansas City establishment. In July, 1919, plaintiff was in the employ of the Fern Laundry in Kansas City, Mo., at which time negotiations were entered into between plaintiff and A. W. Carlson, one of the officers of defendant, with the ultimate purpose of having plaintiff take charge of the said branch laundry at Leavenworth. The negotiations were continued at intervals over a period of some months, finally resulting in an agreement by which plaintiff went to Leavenworth in February, 1920, and took over the management of said branch, for which service he was to receive a salary of $25 a week and 5 per cent. commission on the net earnings of said plant after the expenses of its operation were paid. The surplus accumulated after expenses were paid was sent to the main office at Kansas City. Commissions on sums thus sent to the main office were paid to plaintiff until January, 1921, when such payment ceased.

Testimony on behalf of plaintiff tends to show that, after the payment of commissions ceased, large sums of money representing the net earnings of the branch establishment were sent to the main office at Kansas City, to wit: $1,500 in November, 1920; $3,600 about three weeks thereafter; $6,700 when the branch laundry was closed in March, 1921; $500 from the United States disciplinary barracks; and $300 outstanding accounts of United States Army officers—on all of which items plaintiff claims not to have received his stipulated commissions.

The Leavenworth branch was dismantled on ceasing operations there, and the machinery and equipment were shipped to Kansas City and used by defendant, together with new machinery, in establishing a laundry plant there. Plaintiff then entered the employment of defendant at Kansas City. Plaintiff testified that the last payment of commission received by him was $50 paid April 20, 1921, and that thereafter, beginning in September, 1921, demand frequently was made by him for his commissions remaining due and unpaid, without success, and that he was finally discharged by defendant.

There is little, if any, controversy between the parties as to the general terms of plaintiff's employment at the branch plant, and the differences arise chiefly over the construction to be placed upon said agreement. Defendant claims that the expenses of operating the branch plant properly included the expense of dismantling said plant, moving it to Kansas City and establishing the new plant, including the purchase of new machinery therefor; that after these expenses were paid there were no net earnings within the meaning of the agreement upon which plaintiff would be entitled to a commission; that in fact the total amount of these items was in excess of the funds received from the branch plant. Plaintiff's contention is that these items are not properly chargeable against the earnings of the branch plant and that such charges are not in accordance with the agreement under which he was employed.

The amended petition is in two counts, the first of which alleges: (1) The corporate existence of defendant; (2) the management by plaintiff of the Leavenworth branch from February 14, 1920, to March 5, 1921; (3) the oral agreement of February 14, 1920; (4) the agreement as to remuneration; and (5) that plaintiff was paid by defendant in various sums and at different times from May 15, 1920, to April 20, 1921, on his commissions earned, the total sum of $625.19; (6) that the branch establishment during the period for which plaintiff was its manager earned large sums of money, and that no settlement of the account between the parties was ever made, and that "it would appear that there was a large balance' due from defendant to plaintiff"; and (7) asking an accounting in equity.

The second count of said amended petition is as follows:

"For a second and further cause of action and the second count of his petition, the plaintiff avers and alleges, and makes a part of his second count, paragraphs one (1), two (2), three (3), four (4) and five (5) of his first count hereinbefore set out ha,,c verbs as though they were expressly set out herein.

"Plaintiff further states that since April 20, 1921, the plaintiff has received nothing from the defendant, under the terms of the said oral agreement; that there is still due and unpaid the plaintiff under the terms of his said oral agreement with the defendant, a large sum of money, to wit, one thousand ($1,000) dollars; that plaintiff has demanded payment of the defendant, but it has been refused him.

"Wherefore, plaintiff prays judgment in the sum of one thousand ($1,000) dollars and for all his costs and for interest from March 5, 1921."

Defendant offered a demurrer to the first count of plaintiff's petition which was sustained upon the general ground that said count does not state facts sufficient to constitute a cause of action. The answer to the amended petition admits that defendant is a corporation, owning and operating a general laundry business in Kansas City, Mo., and denies all other allegations of plaintiff's petition. Further, the answer states that plaintiff was in the employ of defendant for a time, under a verbal contract of employment, but denies that the terms of the contract are as alleged in the petition, and states that, at the time of the severing of plaintiff's employment, a full settlement of all claims was made between plaintiff and defendant and that plaintiff was paid in full. Plaintiff's reply was a general denial.

Trial was to a jury, resulting in a verdict and judgment for plaintiff in the sum of $646.50 damages and costs. Motions for a new trial and in arrest were unsuccessful, and defendant appeals.

As a first assignment of error, defendant charges that the verdict is not supported by the evidence. In this connection it is urged that no attempt was made by plaintiff to show what the receipts and disbursements of the plant were during the period of his employment and that there was no competent evidence of such receipts and disbursements upon which to base plaintiff's claim for the 5 per cent, commission claimed. Plaintiff testified that the expenses of the branch plant were paid before remittances were made to the main office at Kansas City. This evidence was objected to as being a mere conclusion on the part of plaintiff, but the court admitted it over defendant's objection. Further, plaintiff testified that the running expenses of the plant were paid at Leavenworth and the net proceeds were remitted to Kansas City; that such net proceeds, in definite amounts, were so remitted at different periods.

We think this evidence was properly admitted. Defendant cites Garner v. Drainage District (Mo. App.) 181 S. W. 587, 588, in support of its view in this respect. It was held in that case that the whole question was whether plaintiff made a sufficient showing to entitle him to the amount awarded by the verdict. The court held there was no evidence whatever in the record from which the jury could reasonably find the amount the plaintiff was entitled to receive under the 75 per cent. commission contract, saying:

"It is quite unnecessary to cite authorities to support the proposition that a verdict unsupported by any competent evidence, or evidence on which could be based a reasonable and certain amount, will not be permitted to stand."

But that is not this case. The testimony of plaintiff herein was of sufficient definiteness and substantiality to form a basis upon which the jury could find for him in a definite amount. Of course, the...