Meyer v. Weber

• Decision Date: 02 November 1937
• Citation: 109 S.W.2d 702,233 Mo.App. 832
• Parties: LESLIE J. MEYER, RESPONDENT, v. EDWARD WEBER, DOING BUSINESS AS GRAND-ST. LOUIS GARDEN, APPELLANT
• Court: Missouri Court of Appeals

109 S.W.2d 702

233 Mo.App. 832

LESLIE J. MEYER, RESPONDENT, v. EDWARD WEBER, DOING BUSINESS AS GRAND-ST. LOUIS GARDEN, APPELLANT

Court of Appeals of Missouri, St. Louis

November 2, 1937

Appeal from Circuit Court of City of St. Louis.--Hon. J. W. McAfee Judge.

AFFIRMED.

Judgment affirmed.

Frank Coffman and Julius J. Fuchs for appellant.

(1) Craig et al. v. Koss Construction Co., 69 S.W.2d 964; Owsley v. Jackson, 163 Mo.App. 11, 19. (2) Owsley v. Jackson, 163 Mo.App. 11, 18; Craig v Koss Construction Co., 69 S.W.2d 964; Sprague v Rooney, 104 Mo. 349, 360, 361; Corby v. Weddle, 57 Mo. 452, 459; Fischer v. Johanson, 51 Mo.App. 157, 163; Beeler v. Perry, 128 Mo.App. 234, 237; Atchison v. Pease, 96 Mo. 566, 569; Boesel v. Wells Fargo & Co., 260 Mo. 463, 474; Briscoe v. Laughlin, 161 Mo.App. 76, 79; Barree v. Cape Girardeau, 132 Mo.App. 182, 189; Allen v. Transit Company, 183 Mo. 411, 432; McDonnell v. Taxi Cab Company, 168 Mo.App. 351, 356.

Charles M. Ryan for respondent.

Morton Electric Co. v. Schramm, 277 S.W. 368; Lyman v. Dale, 262 Mo. 353, 171 S.W. 352; J. B. Colt Co. v. Gregor, 44 S.W.2d 2, 328 Mo. 1216; Harrington v. F. W. Brockman Comm. Co., 107 Mo.App. 418; Supreme Lodge v. Dalzell, 205 Mo.App. 207, 223 S.W. 786; England v. Houser, 178 Mo.App. 70, l. c. 76, 85; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 605, l. c. 610, 611; General Accident & Life Ins. Co. v. Owen Bldg. Co., 195 Mo.App. 371, l. c. 373, 375; Pile v. Bright, 156 Mo.App. 301, 137 S.W. 1017; Tate v. Wabash Railroad Co., 131 Mo.App. 107; Craig v. Koss Const. Co., 69 S.W.2d 964; Ezo v. St. L. Smelting & Refining Co., 87 S.W.2d 1051; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 605; McDearmott v. Sedgwick, 140 Mo. 172, l. c. 182, 183; Carter v. Metropolitan L. Ins. Co., 204 S.W. 399, 402; Osterman v. St. L. Fish & Oyster Co., 218 S.W. 410; Vernon v. Rife, 294 S.W. 747.

McCULLEN, J. Becker, J., concurs; Hostetter, P. J., absent.

OPINION

McCULLEN, J.

This is a suit for damages for alleged breach of a contract. It was originally begun before a justice of the peace and thereafter appealed to the circuit court of the City of St. Louis where there was a trial before the court and a jury which resulted in a verdict and judgment in the sum of $ 599.80 for respondent, who will be referred to herein as plaintiff. Appellant will be referred to as defendant. In due time defendant filed a motion for a new trial, which being overruled he brings the case to this court by appeal.

Plaintiff's petition alleges that defendant was engaged in business under the name of Grand-St. Louis Garden at Grand and St. Louis Avenues in the City of St. Louis, Missouri; that on May 18, 1933, he and defendant entered into a written contract, filed with the petition as exhibit A; that by said contract plaintiff agreed to furnish to defendant four musicians members of the Musicians Mutual Benefit Association, for a period of five weeks from May 18, 1933, ending and including June 21, 1933; that defendant thereby agreed to pay plaintiff $ 136 per week, payable weekly, for such services; that plaintiff duly performed all the conditions of said contract on his part to be performed and furnished said four musicians from May 18, 1933, until June 1, 1933, on which date defendant prevented plaintiff from further carrying out said contract and wrongfully and without just cause discharged the four musicians from said employment; that plaintiff was ready and willing to carry out the terms and provisions of said contract but defendant refused to permit him to do so for the remainder of the term thereof. Plaintiff prayed judgment for $ 544 with interest from June 21, 1933.

Defendant in his answer denied specifically that he entered into a written contract with plaintiff on May 18, 1933, or at any other time, denied that he was engaged in business under the name of Grand-St. Louis Garden, denied each and every allegation in plaintiff's petition "not herein otherwise specifically denied," and further answering, "not admitting any of the allegations in plaintiff's petition, or their legal sufficiency, but, on the contrary, denying the same defendant alleges that even if he had executed said contract, which he denies, namely $ 136 per week, was, and still is, a mere recital in said contract."

The written contract was introduced in evidence by plaintiff, who testified that it was signed by himself and by defendant on May 18, 1933. It is as follows:

"The undersigned party of the first part and second part, respectively, agree as follows:

"The party of the first part hereby agrees to furnish Four Musicians, members of MUSICIAN'S MUTUAL BENEFIT ASSOCIATION.

"As Their Agent, to party of the second part, for $ 136.00 Dollars per week for entire 5 weeks commencing May 18, 1933, to June 21, 1933, at Grand-St. Louis Garden, Grand & St. Louis, St. Louis, Mo.

"Service to consist of 5 Sessions each week.

"Time of service: 21 hrs. per week divided into Five sessions. All sessions to commence at 9:00 P. M.

"As the Musicians engaged under the stipulations of this contract are members of the American Federation of Musicians, nothing in this contract shall ever be so construed as to interfere with any obligation which the musicians owe to the American Federation of Musicians by reason of their prior obligations to the American Federation of Musicians as members thereof.

"This contract is subject to the rules and regulations prescribed in Price List of M. M. B. A., Section 11, attached hereto and made a part of this contract.

"Two weeks' notice must be given prior to the closing of the above contracted season.

"In case the party of the second part shall lease, assign, sell or dispose of in any way the above place of amusement, or the management hereof be changed in any manner, the party of the second part shall still be liable for the whole term of this contract, or any unexpired part of same, unless said contract be assumed by the new party, or parties, and such transfer or change with said assumption is approved in writing by said party of the first part, and countersigned by the Recording Secretary of M. M. B. A. Local No. 2, A. F. of M.

"This contract is not legal unless filed and approved by the Board of Directors and countersigned by the Recording Secretary of the M. M. B. A. Local No. 2, A. F. of M.

"The party of the second part agrees to fulfill provisions of above."

The contract bears the signature of plaintiff as party of the first part, and "Grand-St. Louis Garden, E. Weber, Mgr., Party of the Second Part." It also bears the signature of the Recording Secretary of the M. M. B. A., called Musicians' Union.

Plaintiff testified that prior to the execution of the written contract he had a conversation with defendant who told him that he, defendant, owned the building and garden; that the four musicians, of which he was one, played music at the garden for two weeks and one day; that a dispute then arose between plaintiff and defendant as to the amount to be paid for the services; that they had been paid $ 136 representing one week's salary, which was paid by defendant who gave plaintiff two checks made by the Weber Auto Loan Co. payable to the order of plaintiff, dated May 26, 1933, one in the sum of $ 86 and the other in the sum of $ 50; that the checks were given to him by defendant in the Grand-St. Louis Garden; that at the end of the second week, he and the other musicians did not receive anything but they played one day more, for which they were not paid, making a total of $ 162 then due for services actually rendered. Plaintiff further testified that he offered to render the services for the balance of the term of the contract but defendant told him to "Get out and stay out;" that the value of the services under the terms of the contract for the remainder of the term was $ 382, which, with the unpaid balance for services actually rendered, made a total of $ 544 at the termination of the period of the contract.

Plaintiff further testified that after he and the musicians had played the second week, defendant offered him $ 48 for the week and plaintiff told him he was to get $ 136 for that period.

Dorothy Dawson testified for defendant that she was bookkeeper and cashier for the Weber Auto Loan Co., a corporation, whose office is located at 3540 North Grand Avenue, which was the Grand-St. Louis Garden; that she made deposits for the Weber Auto Loan Co. and that defendant was manager there.

Defendant did not testify in the case.

During the cross-examination of plaintiff by defendant's counsel, plaintiff was asked if it wasn't true that at the time the contract was signed he had the amount of $ 136 per week inserted for the purpose of satisfying the Union's rule and that that amount was not and never was the real agreement as to the consideration for the musicians' services. Plaintiff objected on the ground that there being no charge of fraud, accident or mistake as to the execution of the writing, evidence of prior oral conversations to vary, alter or change the terms thereof was inadmissible. The court sustained this objection, where-upon defendant, out of the hearing of the jury, offered to show by cross-examination of plaintiff that instead of the contract price being $ 136 per week it was $ 86 per week and that such contract, which was actually entered into between them caused and induced defendant to sign the written contract on behalf of the Weber Auto Loan Co. and that it would never have been signed had such an agreement not been made; that plaintiff at that time represented to defendant that he only wanted the contract signed for the purpose of showing same to his local union and for no other purpose.

Defendant further stated that he made the...