McManama v. Dyer
| Citation | 176 S.W. 1101 |
| Decision Date | 24 May 1915 |
| Docket Number | 11659 |
| Parties | MCMANAMA v. DYER. |
| Court | Court of Appeals of Kansas |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
“ Not to be officially reported.”
Action by Edward E. McManama against Wm. M. Dyer. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Marley & Marley and W. T. Latham, all of Kansas City, for appellant.
Langsdale & Howell, of Kansas City, for respondent.
Plaintiff sued defendant in a justice court for an alleged breach of a contract of employment. A trial in the circuit court on appeal resulted in a verdict and judgment for plaintiff for $75, and defendant appealed.
A bank in Kansas City, of which defendant was cashier, became the owner under foreclosure of a chattel mortgage, of the personal property in a pool hall on east Fifteenth street and, with the avowed intention of selling the property at the first favorable opportunity, employed plaintiff to conduct the business until a suitable buyer could be found. The pool hall was poorly located, and within a week after plaintiff took charge of it he found a new location at Eighty-Second and Woodland streets, and an agreement was entered into between him and defendant for the removal of the business, under the terms of which, as stated by plaintiff, defendant was to advance the money for the first month’s rent of the building and the license fee, and plaintiff was to run the pool hall at the new location for half the net proceeds of the business until the property was sold, and was to receive one-half of the proceeds of such sale in excess of $200, which was first to be paid to defendant. As we understand his version of the agreement, his right to share in the proceeds of a sale was not to depend upon him finding a purchaser, but was to attach if defendant procured a purchaser without his aid. Defendant gave him a checkbook and authorized him to draw checks on the bank to pay the rent and license fee, and further authorized him to conduct the pool hall and transact the business thereof in his own name. Pursuant to this agreement, plaintiff rented a building at Eighty-Second and Woodland streets from an agent of the owner and gave him a check for $18 in payment of the rent for one month and made application in his own name for a license. Learning in some way of this transaction, a brother of the owner of the building saw defendant and entered into an agreement with him to conduct the business in the same building in place of plaintiff. After this was done, the owner of the building, who had expressly authorized her agent to rent it to plaintiff, refused to accept the check, and rented the building to her brother, who moved the personal property from the pool hall on Fifteenth street to the new location and proceeded to conduct the business in his own name.
Counsel for defendant argue that, at most, plaintiff was employed as a mere broker to sell the property, that his employment was not exclusive, and that since no time was fixed, expressly or by implication, at which the agreement was to expire, the employment was terminable at the will of either party, and was terminated by the act of defendant in disposing of the property to the brother of the owner of the building (citing State ex rel. v. Walker, 88 Mo. 279; Loving Co. v. Cattle Co., 176 Mo. 330, 75 S.W. 1095; Kilpatrick v. Wiley, 197 Mo. loc. cit. 167, 95 S.W. 213; Staroske v. Pub. Co., 235 Mo. 77, 138 S.W. 36). These cases announce the well-known rule that a power conferred by a principal upon his agent to sell property which is not exclusive or to be enjoyed for a fixed time is revocable at the will of the principal, except in certain cases, among which are those where the power or authority is coupled with an interest. As is said in State ex rel. v. Walker, supra:
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