McKelly v. Metco Products

• Citation: 193 S.W.2d 28,354 Mo. 993
• Decision Date: 11 February 1946
• Docket Number: 39429
• Parties: Louis F. McKelly, Appellant, v. Metco Products, Inc
• Court: Missouri Supreme Court

193 S.W.2d 28

354 Mo. 993

Louis F. McKelly, Appellant, v. Metco Products, Inc

No. 39429

Supreme Court of Missouri

February 11, 1946

Rehearing Denied March 11, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed.

J J. Brinkman and Richard M. Stout for appellant.

(1) The self-serving evidence of and concerning Defendant's Exhibit 6 should not have been admitted, since it was not a contemporaneous or an original book entry. Finnell v. Kellogg, 194 Mo.App. 342, 186 S.W. 1169; Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904; Grant v. Kansas City So. Ry. Co., 172 Mo.App. 334, 154 S.W. 1016; Milne v. Chicago, R.I. & P. Ry. Co., 155 Mo.App. 465, 135 S.W. 85. (2) Respondent's Instruction 3 does not hypothesize any fact or situation shown by the evidence or by any reasonable inferences therefrom. Burkhardt v. Decker, 221 Mo.App. 211, 269 S.W. 665; Black's Law Dictionary (3d Ed., 1933), p. 1786; Morris v. Briggs Photographic Supply Co., 192 Mo.App. 145, 179 S.W. 783; Whipple v. Edward Aaron, Inc., 228 Mo.App. 968, 74 S.W.2d 1089. (3) Respondent's counsel had no right to read portions of the deposition of plaintiff to the jury during the argument, when he had not read such portions in evidence. Robertson v. Wabash R. Co., 152 Mo. 382, 53 S.W. 1082; Schlavik v. Friedman-Shelby Shoe Co., 157 Mo.App. 83, 137 S.W. 79.

Moser, Marsalek & Dearing for respondent.

(1) Defendant's Exhibit 6 was an original book entry made contemporaneously with the event it recorded and therefore was properly admitted. Dameron v. Harris, 281 Mo. 247, 219 S.W. 954; Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904; Milne v. C., R.I. & P. Ry. Co., 155 Mo.App. 465, 135 S.W. 85; Fulkerson v. Long, 63 Mo.App. 268; Seligman v. Rogers, 113 Mo.App. 642. (2) Furthermore, the court's ruling is not subject to review because plaintiff did not at the time object to its admissibility on the ground it was not a contemporaneous or an original book entry, as now asserted, but instead on an entirely different ground. An objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion to permit consideration on appeal. Galloway v. Galloway, 169 S.W.2d 883; Bragg v. Met. St. Ry. Co., 192 Mo. 331, 91 S.W. 527; Schmidt v. St. Louis Ry. Co., 163 Mo. 645; Johnson v. Kansas City Rys. Co., 233 S.W. 942; Carroll v. Mo. P. & L. Co., 231 Mo.App. 265, 96 S.W.2d 1074. (3) There was substantial evidence that plaintiff's original contract of employment was terminated and a new agreement entered into effective April 1, 1942, by the terms of which he was to be compensated on a straight salary basis. Defendant's Instruction 3 properly submitted that issue. (4) To preserve for review on appeal the question of alleged improper argument, it is necessary to make a specific objection, with the ground therefore stated, and if it be overruled, to save an exception to the court's action. Neither was done and nothing is presented for review. Torreyson v. United Rys. Co., 246 Mo. 696, 152 S.W. 32; State v. Phillips, 233 Mo. 299, 135 S.W. 4; Adams v. Railroad, 287 Mo. 535, 229 S.W. 790; Kersten v. Hines, 283 Mo. 623, 223 S.W. 586; Milliken v. Larrabee, 192 S.W. 103.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action in two counts to recover commission on war contracts alleged to have been procured by plaintiff for defendant. The first count sought recovery of 10% commission -- $ 34,422.25; the second count was on quantum meruit for $ 16,788.62. Verdict and judgment went for defendant on both counts and plaintiff appealed.

In 1942 defendant obtained, so far as involved here, four war work contracts for the manufacture of parts of antiaircraft shells, upon which contracts plaintiff based his petition for commission. Three of these contracts were with American Well & Prospecting Company, Corsicana, Texas, and one with Harry Darby, St. Louis. The quantum meruit count was based on these same contracts, and on the theory that 5% would be reasonable. And plaintiff requested and was given an instruction which told the jury that if they found for plaintiff on the quantum count, the verdict could not exceed 5% of the total amount of the contracts. Defendant answered by a general denial and further alleged that plaintiff was on a salary basis and not on a commission basis.

Error is assigned on the admission of evidence and on defendant's instruction No. 3.

Prior to 1942 the corporate name of defendant was Butler-Kohaus, Inc. Henry J. Butler was the principal owner. In 1942, Walter E. Pauley came into the company and the name was changed to Metco Products, Inc. Prior to 1942, the business of Butler-Kohaus was principally that of retail sales of lighting fixtures. In 1934, plaintiff became a salesman for Butler-Kohaus on a 10% commission basis, except in some instances the commission would be adjusted and might be less than 10%. Plaintiff had what is termed a weekly drawing account and in addition was paid $ 15.00 weekly, designated as salary. The weekly drawing account was increased at intervals, and was $ 60.00 in 1941. The weekly drawing account was charged against his commissions, but the $ 15.00 payments were not. Defendant concedes that plaintiff was on a 10% commission basis as a salesman of light fixtures, but contends that on April 1, 1942, he was put on a salary basis, and that all that he did in the procurement of the contracts above mentioned was on a salary basis. The evidence on that question was conflicting, and the finding, as stated, was adverse to plaintiff.

The evidence complained of concerns defendant's exhibit 6, a book entry. In order to better appreciate this assignment some explanation is necessary. According to defendant's evidence, when Pauley came into the defendant company, and war contracts were obtained, the capital structure was changed; two classes of stock, A and B, were created. Class A stock represented the joint interest of Butler and Pauley for the war contracts which was termed the war products division of the company. The class B stock represented the existing business of the company in the sale of light fixtures. Pauley had no interest in the class B stock. All the details of changing the capital structure were not completed until July, 1942. Books for the changed capital structure were not set up prior to July, 1942, and all transactions for the new setup were entered on the old books of Butler-Kohaus. And what defendant terms as plaintiff's salary was entered on these books as if it were commission, just the same as were the entries when plaintiff was selling light fixtures on a commission. Defendant's bookkeeper, George B. Zaenglin, a witness for defendant, testified: "Q. Now, if Mr. McKelly was on a salary (after April 1, 1942), why did you carry on the bookkeeping under those arrangements? A. We waited until the auditor came to have all the books changed, and later on we would charge the Metco Products with any item that was charged to McKelly. Q. And when were the books changed, Mr. Zaenglin? A. In what way do you mean changed? Q. You said you were waiting for the auditor -- A. That would be July 1st (1942), when the new set of books was going to be started. Q. Prior to July 1st, were any books kept for the Metco Company at all? A. No, sir. Q. And the transactions that arose in connection with Metco operations, were they all carried on the Butler-Kohaus books? A. On Olive street at the Butler-Kohaus. Q. All entries were entered in these books? A. Yes. Q. Then after that, when the new books were set up out at the Metco Company, was there a different form of check used? A. Yes, sir. Q. Was there a separate bank account for the Metco operations as distinguished from the Butler-Kohaus operations? A. Yes, there was."

After the books of the new setup were opened in the name of Metco Products, Inc., the items of credit to plainti...