Morris v. The Z. T. Briggs Photographic Supply Co.

• Decision Date: 14 June 1915
• Citation: 179 S.W. 783,192 Mo.App. 145
• Parties: WILLIAM S. MORRIS, Appellant, v. THE Z. T. BRIGGS PHOTOGRAPHIC SUPPLY COMPANY, Respondent
• Court: Kansas Court of Appeals

179 S.W. 783

192 Mo.App. 145

WILLIAM S. MORRIS, Appellant, v. THE Z. T. BRIGGS PHOTOGRAPHIC SUPPLY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 14, 1915

Appeal from Jackson Circuit Court.--Hon. Joseph A. Guthrie, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

M. J Kilroy, for appellant.

Moore & Creel for respondent.

OPINION

JOHNSON, J.

This is an action upon a contract of employment for the recovery of certain commissions plaintiff alleges he earned in the years 1908, 1909, 1910, and 1911, and which defendant agreed to pay in addition to the salary paid to plaintiff. The answer contains a general denial and affirmative defenses, the nature of which will appear in our discussion of the case. A trial of the issues resulted in a verdict and judgment for defendant and plaintiff appealed.

At the beginning of the year 1906, Z. T. Briggs, a dealer in photographic supplies at Atchison, Kansas, removed his business to Kansas City and continued it under the trade name of Z. T. Briggs and Company, until April, 1908, when he organized the defendant corporation which succeeded him and assumed his business obligations. Shortly before his removal from Atchison, Briggs employed plaintiff who had been for many years in the service of another dealer in Kansas City to assist him in conducting the new business and agreed to pay plaintiff a salary of $ 1320 a year in monthly installments of $ 110 each, and further agreed that for the second year of the service he would allow plaintiff in addition to such salary, a commission of $ 1 per month for each $ 1000 the volume of business for that year might exceed $ 60,000. It was agreed that a formal written contract would be entered into but this was not done. A written memorandum of some of the features of the oral agreement was drawn and signed by plaintiff. That memorandum was as follows: "$ 1 per month for each $ 1000 over $ 60,000 added for year 1907, $ 110 per month for 1906."

Pursuant to this agreement plaintiff entered the employment about January 1, 1906, and continued until April 23, 1912, and was paid the agreed salary which defendant voluntarily increased to $ 120 per month some time in the year 1908. After the close of the year 1907 defendant paid commissions to plaintiff earned under the agreement during that year. No further agreement was made relating to the terms of the employment and nothing said about commissions until 1909, when plaintiff requested payment of commissions earned during the year 1908.

According to the testimony of both parties this request provoked an angry dispute. Plaintiff insisted and defendant denied that the contract provided for the payment of commissions after 1907. Defendant produced the written memorandum but plaintiff was not convinced that defendant's position was right and, so he states, ended the dispute with the assertion, "do not be alarmed, I will get my commissions as long as I am here." The next morning plaintiff reported for duty, was graciously received by defendant and the subject of commissions was not mentioned again.

Defendant agrees with plaintiff that the only reference to commissions was on the occasion of the controversy in 1909, but denies that plaintiff said he would have commissions as long as the employment continued and states that instead, plaintiff said, "if these commissions are not paid I will quit," to which defendant replied, "that is up to you, Mr. Morris."

When the employment was terminated in April, 1912, plaintiff requested defendant to mail him a check for all that defendant owed him. Afterward defendant drew a check for the amount due on salary, wrote on the check that it was in full payment of salary and mailed it to plaintiff who received and cashed it. Plaintiff then brought this suit to recover the commissions he claims his contract entitled him to receive for the years 1908, '09, '10 and '11.

At the request of plaintiff the court instructed the jury that if they believed from the evidence "that no change in plaintiff's compensation so far as it was affected by commissions was agreed upon between plaintiff and defendant at the time of the incorporation of defendant, or at any time thereafter, prior to January 1, 1912, and that during said period no notice was given by either party to the other that the compensation for services thereafter to be rendered so far as the same was affected by commissions would be changed, then plaintiff is entitled to recover in this action for each of said years an amount equal to twelve dollars for each $ 1000 of sales made by the defendant in that year in excess of $ 60,000."

The following instructions were given at the instance of defendant: "The jury is instructed that if you find and believe from the evidence in this case that plaintiff and Z. T. Briggs mentioned in evidence, in about the year 1906, agreed that plaintiff should receive for services to be rendered by him, $ 110 per month during the year 1906, and for the year 1907, in addition to the sum of $ 110 per month, $ 1 per month for each $ 1000 over $ 60,000 in sales made by defendant during said year, and that plaintiff and Z. T. Briggs or the defendant had no contract for the year 1908, or thereafter, then the plaintiff cannot recover therefor in this action, and your verdict must be for the defendant."

"If the jury find and believe from the evidence that on or about April 23, 1912, defendant gave plaintiff a check in full payment of all salary to date, and that in accepting such check it was understood by plaintiff and defendant to be in full compensation to plaintiff for all services rendered defendant, your verdict must be for defendant."

And on its own motion the court instructed the jury "that if you find and believe from the evidence that in the year 1909 plaintiff made demand of defendant for commissions for the year 1908, and that the defendant, acting through its president, Z. T. Briggs, then denied owing any such commissions to plaintiff, and the plaintiff thereupon stated in substance that if his commissions were not paid he would quit the defendant's employ, and the said Z. T. Briggs replied thereto in substance that if plaintiff was so disposed he might quit, and if you find and believe from the evidence that from such conversation and all the facts and circumstances in evidence the plaintiff understood that he was to receive no commissions for the year 1909, and thereafter, but nevertheless continued in the employ of the defendant thereafter, then you are instructed that this would constitute a change, or modification of the contract, if any, theretofore existing between the parties, and in such event there can, in this case, be no recovery by ...