Ogden v. Atlas Brewing Co.

• Decision Date: 29 January 1923
• Docket Number: No. 14600,14600
• Parties: OGDEN v. ATLAS BREWING CO.
• Court: Missouri Court of Appeals

248 S.W. 644

OGDEN v. ATLAS BREWING CO.

No. 14600

Kansas City Court of Appeals. Missouri.

January 29, 1923.

Rehearing Denied March 5, 1923.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by D. W. Ogden against the Atlas Brewing Company, doing business as the Atlas Beverage Company. Judgment for plaintiff, and defendant appeals. Reversed in part, and affirmed in part.

Clyde Taylor, of Kansas City, for appellant.

Ringolsky & Friedman, of Kansas City, foe respondent.

BLAND, J.

This is an action for the wrongful discharge of plaintiff by the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $1,500 on the first count, and defendant has appealed. The second count is not involved in this appeal.

The facts show that defendant was engaged in the manufacture and sale of a temperance drink resembling beer; that on January 8, 1920, it entered into the following written contract with plaintiff employing him as a salesman to sell its products:

"Mr. D. W. Ogden, 5901 Grant Avenue, Kansas City, Mo.—Dear Sir: This is to confirm our agreement for your employment as traveling salesman for the sale of our products. You are to devote your entire time to the sale of our products under our directions and to our entire satisfaction. Your compensation will be a salary of $300.00 per month and reasonable traveling expenses. In addition thereto you are to receive a commission on all beverages sold and paid for within one year from date, as follows: Car "I to 50 at 1¢ per dozen. Car 51 to 100 at 2¢ per dozen. Car 101 to 150 at 2½¢ a per dozen. Car above 150 at 3¢ per dozen. Also 20¢ per barrel on beverages sold in wood. It is mutually understood that no commission is due you after your employment with our company has terminated. Yours truly, Atlas Brewing Company, Per Anton Laadt, Secy. and Mgr.

"Accepted: B. W. Ogden."

On August 1, 1920, plaintiff was discharged by defendant and his contract with it terminated and ended.

At the trial the court, over the objection of defendant, permitted plaintiff to testify that prior to and on the day that the contract was entered into plaintiff had a conversation with the general manager of the defendant at its office in Chicago, Ill., and at that conversation it was agreed that the employment "was to continue through the year 1920, from January 8th to December 31st." Defendant assigns as error the admission of this testimony over its objection on the ground that it tended to alter, vary, and add to the written contract. Plaintiff contends that the testimony was admissible: First, because the contract is incomplete in that the length of employment is not mentioned; that from a reading of the entire contract it shows that it is incomplete; and, second, the contract upon its face is ambiguous as to the length of time plaintiff was to be employed. In view of these contentions, plaintiff says that parol evidence was competent to show what was meant. Defendant answers this by stating that the contract, not having mentioned the length of the time of the employment, is one of hiring at will and could be abandoned at any time by either party without incurring any liability to the other for damages; that it does not show on its face that it is incomplete, nor is there any ambiguity in its terms. We think defendant's contention to be well taken. Brookfield v. Drury College, 139 Mo. App. 339, 365, 123 S. W. 86; Finger v. Brewing Co., 13 Mo. App. 310; Evans v. Railway, 24 Mo. App. 114, 117. The contract being in writing, it was inadmissible to vary its terms by parol evidence showing that, instead of it being a hiring at will, the employment was for a fixed period of time. Harrington v. Brockman Commission Co., 107 Mo. App. 418, 81 S. W. 629; Blake Mfg. Co. v. Jaeger, 81 Mo. App. 239; Williams v. K. C. S. B. Ry. Co., 85 Mo. App. 103, 108; Met. St. Ry. Co. v. Rope Co., 156 Mo. App. 640, 644, 137 S. W. 633. There is nothing in the cases of Finger v. Brewing Co., supra, Evans v. Railway, supra, and Davis v. Ins. Co., 181 Mo. App. 353, 356, 172 S. W. 67, or the other authorities cited by plaintiff, contrary to this holding.

We think that the contract upon its face shows that it is neither incomplete nor ambiguous. The fact that It provides first for an indefinite employment of plaintiff at a salary of $300 per month and traveling expenses, and then recites that in addition he was to receive a commission on all beverages sold and paid for within one year from date, and then concludes with the clause, "It is mutually understood that no commission is due you after your employment with our company has terminated," does not make the contract in any way ambiguous, or show that It is incomplete. The contract properly construed means that plaintiff was employed for an indefinite period of time. He testified that the manager expressed the hope, at the time the contract was entered into, that it would continue for five years. It was provided in the contract that for the first...