McKinley v. Durbin
| Decision Date | 20 June 1950 |
| Docket Number | No. 27845,27845 |
| Citation | 231 S.W.2d 286 |
| Parties | McKINLEY v. DURBIN et al. |
| Court | Missouri Court of Appeals |
Francis R. Stout, St. Louis, for appellants.
Vincent M. Flynn, and Thomas Rowe Schwarz, St. Louis, for respondent.
WOLFE, Commissioner.
This action was instituted as a suit in equity seeking an accounting from the defendants who were doing business as partners under the name of Perma Stone Company. The petition alleged that the partners were indebted to the plaintiff for commissions due on contracts that he had obtained for them as a salesman and sales manager and that by reason of this he had an interest in the income of the partnership from those contracts, but that the income was being diverted to other business enterprises and that proper books were not kept by the defendants. In addition to a prayer for an accounting for his share of the gross receipts the plaintiff also prayed that the defendants be enjoined from the commingling of funds or the diversion of funds from the Perma Stone Company. The defendants denied that they were indebted to the plaintiff and set up a counterclaim in which they averred that the plaintiff had by reason of certain fraudulent acts damaged them in the sum of five thousand dollars.
The court, after hearing some evidence, held that the case involved a lengthy accounting and directed that a reference be had. The appointed referee, after hearing the evidence, made a finding of facts and recommended to the court that the plaintiff be awarded a judgment against the defendants in the sum of $1,903.56 and that the defendants recover nothing on their counterclaim. The defendants filed exceptions to the report of the referee and the exceptions were overruled by the court which approved the referee's report and entered a judgment in accordance with the recommendations made.
The evidence disclosed that Dee F. Durbin and his wife were partners in the business of applying to the exterior of buildings a concrete mixture molded in the shape of stones. The product applied was known as Perma Stone and was intended to give the building upon which it was used the appearance of a stone structure. Dee F. Durbin, who apparently managed the business, employed McKinley, the plaintiff, as their sales manager on March 10, 1946, and up to that time the defendants had done very little work with Perma Stone. It was agreed in writing that McKinley should be paid 15 per cent commission on all sales made by him and 5 per cent commission on all sales made by other salesmen. The other salesmen were to receive 10 per cent commission, half of which was paid when the contracting customer had paid 10 per cent of his contract to the Perma Stone Company and the remainder of the commission was paid when 50 per cent of the sum due under the contract sold had been collected by the company. The work of McKinley entailed the hiring of salesmen, selling and figuring contract prices on prospective work.
The plaintiff worked for the defendants until March 22, 1947, at which time a dispute arose between the plaintiff and Durbin over orders Durbin had given to one of the salesmen, and by agreement of the parties the contract of employment was terminated. Plaintiff stated that it was understood that he was to be permitted for a period of thirty days after March 22 to close some contracts for which he had been negotiating. During the whole period of plaintiff's employment and shortly thereafter there were forty-five contracts closed. On some of them the plaintiff was entitled to full commission, some of the contracts had been canceled, and some had been renegotiated and adjusted. They totaled in gross $274,676.30, and the plaintiff claimed that there was still due him $3,901.76 in earned commissions.
In testifying, Dee F. Durbin did not deny that commissions had not been paid to the plaintiff on seven of the contracts obtained. He stated, however, that he lost money on several jobs plaintiff turned in and one of these was on a building known as The Truth Center. This contract had been signed by McKinley after the termination of his own contract of employment.
A salesman named Swindle testified that he had figured the Truth Center job at a price of $9500, excluding one wall, but that price was not acceptable to the customer, and McKinley refigured the job at $8500 and included the wall that had been first excluded. Durbin knew that McKinley had reduced the original bid but said he did not know how much it had been reduced and that he made no profit on the job when he should have made $2,168.75.
There was testimony that McKinley underestimated several jobs and that $668 on one job could not be collected because in selling it the plaintiff had falsely represented that the product was waterproof. McKinley testified that when properly applied Perma Stone was waterproof. The testimony was detailed as to each account filling some six hundred pages of transcript, but the above is the general tenor of the evidence which will be more fully set out in considering the points raised.
The findings and recommendations of the referee are as follows:
'1. That the contract of employment between defendant and plaintiff was terminated by the agreement of the parties thereto on March 22, 1947.
'2. That, with respect to contracts for the installation of Perma Stone which were not performed and were canceled, McKinley is not entitled to any commission.
'3. That with respect to contracts for the installation of Perma Stone, dated after March 22, 1947, McKinley is not entitled to any commission. (There was no showing that any of the prospects as to which Durbin agreed to pay commissions to McKinley if sold after March 22, 1947 were in fact sold.)
'4. That, with respect to contracts for the installation of Perma Stone sold prior to March 23, 1947 on which the work was done after that date or payments made after that date, McKinley is entitled to commissions.
'5. That, with respect to contracts with Perma Stone Company of St. Louis involving construction work, McKinley is entitled to commission.
'6. That, with respect to contracts on which McKinley was originally entitled to commissions which were thereafter adjusted or renegotiated, McKinley is entitled to commissions on the renegotiated or adjusted amount.
'7. That, with respect to contracts for the installation of Perma Stone in the State of Illinois which were sold through Perma Stone Company of St. Louis, McKinley is entitled to commission.
'In accordance with the foregoing, the Referee finds that plaintiff is entitled to commissions as follows on the contracts listed:
"Balance due
McKinley
------------
"Contracts which were
renegotiated or adjusted
"H. J. Williams $203.70
"G. Favazza 52.23
"Walter Lieberman 95.00
"Contracts obtained prior to
March 23, 1947 on some of
which work was done or
payment made after that
date, and on some of which
work was in Illinois
"A. E. Jones 75.00
"Harry W. Mueller 50.08
"William Fedorchak 109.75
"Frank J. Schmidt 92.15
"Harry Shapiro, Jr. 49.85
"R. H. Hessenflow 82.50
"D. E. Colborn 107.50
"Contracts on which no defense
was offered as to liability
for commissions
"John J. Gruhala 18.00
"Thomas Vohsen 3.00
"Williard L. Cunningham 76.25
"George W. Bacon 18.10
"John W. Schmermund 117.00
"Frank A. Malone 63.75
"James J. Bodner 10.20
"Miscellaneous other contracts
on which McKinley is
entitled to be paid
"Theodore Rischbieter
Durbin specifically
agreed to pay full commission
on this contract. 144.50
"Jesse Kitchen. Only
defense offered was that
this contract involved
construction work. 181.10
"Sansone. Durbin contended
that he obtained
this contract. This Referee
finds that this party
was in fact a prospect
of McKinley's on which
McKinley is entitled to
full 15% commission 303.90
"Andrew Pizone. Construction
contract for $1000,
on which commission
has not been paid.
Commission on contract
for $2675 paid in
final settlement. 50.00
'On the following contracts, it is found that McKinley is not entitled to commissions for the reasons noted:
'Lou Showers
'W. U. Parker
'Paul Kraichely
'Thurman Corey
'John J. Globan, Jr.
'Ernest A. Lorenz
'Charles W. Bransonn
'Louis E. Patterson
'R. F. Culbertson
'Herman Dohrman
'Oliver J. Pellom
'Truth Center Church
'Frank Zykan
'Hrin
'Russell A. Sisler
'Paul Kraichely
'Mrazek Moving and Storage Co. Balance due McKinley was paid in settlement check of April 7, 1947.
...
To continue reading
Request your trial
-
Durwood v. Dubinsky
...In support of this position plaintiff cites Ittner v. St. Louis Exposition & Music Hall Ass'n, 97 Mo. 561, 11 S.W. 58, and McKinley v. Durbin, Mo.App., 231 S.W.2d 286. We consider it immaterial that plaintiff labeled his suit for an injunction as a 'supplemental petition.' It should have be......
-
Bass v. Daetwyler
...considered the entire record (including the numerous exhibits) in the discharge of our duty to review the case de novo [McKinley v. Durbin, Mo.App., 231 S.W.2d 286, 290(5)], we accept and adopt the factual findings of the referee, as incorporated in the judgment of the trial court, with res......
-
Stark v. Cole
...142 S.W.2d 1111; Am. Button Co. v. Weishaar, Mo.App., 170 S.W.2d 147; Leone v. Bilyen (Mo.App.), 238 S.W.2d 317; McKinley v. Durbin (Mo.App.), 231 S.W.2d 286; Richter v. Frieden (Mo.App.), 243 S.W.2d 783.2 Among the numerous Missouri cases so holding are:Mueller v. Grunker, Mo.App., 123 S.W......
-
Burnett v. Johnson, 48325
...Highway Comm., 322 Mo. 419, 17 S.W.2d 535, 541; Sapp v. N. R. Garrett City Quarry, Mo.App., 284 S.W.2d 49, 52(4) and McKinley v. Durbin, Mo.App., 231 S.W.2d 286, 289. This rule perhaps, in part, accounts for defendant-appellant's insistence that the court erred in not granting the affirmati......