Polen v. Kansas City Chip Steak Co.

• Citation: 404 S.W.2d 416
• Decision Date: 06 June 1966
• Docket Number: No. 24419,24419
• Parties: Jack POLEN, Respondent, v. KANSAS CITY CHIP STEAK COMPANY, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 416

404 S.W.2d 416

Jack POLEN, Respondent, v. KANSAS CITY CHIP STEAK COMPANY, Appellant.

No. 24419.

Kansas City Court of Appeals, Missouri.

June 6, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 29, 1966.

Application to Transfer Denied Sept. 12, 1966.

David Skeer, Judith Whittaker, Sheffrey, Ryder & Skeer, Kansas City, for appellant.

John M. Mahota, Gage, Hodges, Park & Kreamer, Kansas City, for respondent.

BLAIR, Judge.

This is an action by Jack Polen, a former employee of Kansas City Chip Steak Company, against that company for $2,500.00 which he claims represents a bonus the company orally contracted to pay him at the end of the first year of his employment. The theory of his petition was that the contract was for payment of the bonus to him at the end of that time without any conditions or restrictions governing the obligation of the company to pay. To put it otherwise, if the company retained him in its employ for a year, he was to be paid the bonus regardless of his general performance as an employee or its quality or anything else. The theory of the company's answer was that it contracted to pay Polen a bonus of $2,500.00 at the end of his first year's employment only if he developed new and marketable products for it and to its satisfaction during that time. It claimed Polen failed to develop any new and marketable products at all during that time and therefore it was under no obligation to pay him any bonus at all under the terms of the contract. Polen did not claim he developed any such products and he flatly denied that the contract for the bonus obliged him to do so. The cause was tried before a jury and the verdict was for Polen for $1,850.00, $650.00 less than he claimed. The company appeals.

The contract was an express one and the only question raised by the pleadings was whether the company owed Polen the $2,500.00 bonus on his theory or owed him nothing at all. 27 Mo.Digest, Trial, k333. Sufficient it is to say here that substantial evidence directed to this question was presented by both parties to sustain their respective theories of the contract. Evidence in particular will be discussed as it becomes material. The company presents two points on this appeal: (1) 'The Court erred in entering judgment in accordance with the jury verdict of $1,850.00 because the verdict was contrary to and unsupported by the evidence in the case and unresponsive to the issues presented by the pleadings and evidence, for under the said pleadings and evidence the jury could only find either that the plaintiff was entitled to recover $2,500.00, or that he was entitled to recover nothing,' and (2) 'the Court erred in giving Instruction No. 4: 'If you find the issues in favor of plaintiff then you must award plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained,' because the instant suit was not one for damages resulting from breach of contract, but a suit for a sum allegedly due under a contract, and the proper measure of damages was the contract price.' The two points presented are in reality only one, for if Instruction No. 4 was erroneous and prejudicial, in the circumstances of this case, then the Court should have refused to enter judgment for Polen on the verdict and granted the company a new trial.

The company cites decisions declaring the familiar rule that where a plaintiff sues on an express contract for the payment of a fixed amount of money, and the existence of the contract is denied by the defendant, the plaintiff must recover by convincing the triers of fact that he is entitled to recover on the exact terms of the contract and in the exact amount for which it calls or he can recover nothing at all. This is true because the only issue is that of contract or no contract. If the contract is established, the plaintiff is entitled to the entire amount for which it calls. If the contract is not established, he is entitled to nothing. There is no room in a case with the issue so narrowly drawn for compromise on a finding in any other amount. If the jury fails to confine itself to the only issue and undertakes, in such a case, to arbitrate and adjust what it deems to be the equities between the parties, or to do 'rough justice', as some decisions say, and returns a verdict for the plaintiff for an amount less than that fixed by the contract, both the plaintiff and the defendant have been prejudiced by its failure to confine itself to the only issue in the case and by trying some issue foreign to the case. Even though the plaintiff is willing to accept the verdict for a less amount, the defendant is entitled to have it set aside as not responsive to the issue tried by the parties and as one based on something foreign to the only issue presented. Of course, these decisions all presuppose that the only issue tried is that of contract or no contract and that there is nothing else validly in the case warranting departure from the rule they announce. We acknowledge the force of these decisions and the correctness of the rule they declare. Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Martin v. Barnett, Mo.App., 208 S.W. 278; Weisels-Gerhardt Real Estate Co. v. Pemberton Inv. Co., 150 Mo.App. 626, 131 S.W. 353; Cap-Keystone Printing Co. v. Tallman Co., Mo.App., 180 S.W.2d 802; Budd et al. v. Hoffheimer, 52 Mo. 297; Francis v. Saleeby, Mo.App., 282 S.W.2d 167; Outcault Advertising Company v. Caruthersville Plumbing and Auto Company, Mo.App., 230 S.W. 340. There are others. 27 Mo.Digest, Trial, k333.

Polen cites decisions that announce exceptions to the general rule declared in the company's decisions and which analyze and distinguish most of them. One decision is Blodgett v. Koenig, 314 Mo. 262, 284 S.W. 505. There the suit was on an express contract for money in an amount fixed by the contract. The substance of plaintiff's verdict directing instruction was that if the jury found the existence of the contract, that it was for the fixed amount in money, and that plaintiff had performed and defendant had not, plaintiff was entitled to a verdict for the entire amount. The defendant led the trial court to give erroneous instructions authorizing the jury to return a verdict for the plaintiff in a lesser amount if it found that the amount fixed by the contract was not 'reasonable'. A verdict was returned for one-half of the amount for which plaintiff sued. The plaintiff acquiesced in the verdict. The ruling on appeal by the defendant was that he could not complain that the verdict was returned for a lesser sum because he had invited such a verdict by the instructions he led the trial court to give. In Cabool Nat. Bank v. McDowell, 184 Mo.App. 567, 170 S.W. 682, the plaintiff sued the defendant on an express contract for $500.000. The defendant denied the contract but managed to get evidence into the record which would authorize a finding for a lesser sum if believed. The court found for the plaintiff in a lesser sum. The plaintiff accepted the finding. The holding on appeal by defendant was that he could not complain of the finding of the court for a lesser sum because he had induced it by presenting the evidence on which it could be based. Relying on these decisions Polen argues that the company deliberately injected irrelevant evidence into the case tending to lead a jury of legally untrained laymen to believe that a diminution of the amount of the bonus was warranted and the company cannot now complain. What the company managed to get into the evidence was indeed irrelevant to the issues made by the pleadings.

The evidence was as follows: At the end of his first year's employment, Polen was told by the company's vice-president that his general performance as an employee, as well as his failure to develop new and marketable products, was unsatisfactory and that his employment was terminated. The company 'offered' him $400.00 'termination pay' and Polen accepted. During the last six months of his employment he had been permitted to use a company car for his personal use while he was not using it on the company's business. By agreement $25.00 per month was to be deducted from his salary as payment for his personal use of the car. This monthly $25.00 deduction was described as 'nominal' and the inference was left that his personal use of the car was worth much more than $25.00 a month. There was evidence that the company forgot to deduct $25.00 for the first month and waived its right to collect it when it discovered its oversight. It did deduct $25.00 for the use of the car for each of the remaining five months, or $125.00. When the company terminated Polen's employment he asked that the $125.00 deducted for use of the car be returned to him. The company 'did give it to him'. The inference from all the questioning on these subjects was that the company was simply giving Polen money which was not his as of right. The money actually given to him amounted to $525.00, not including the $25.00 monthly deduction the company forgot and then waived when it discovered its oversight.

Polen's base salary was $200.00 per week, slightly more than $10,000.00 per year. The vice-president testified that a few days before the termination of Polen's employment a check list was submitted by him to Polen. This check list related to the qualify of Polen's performance of his general duties as an employee and not to his failure to produce new and marketable products. By it a list of questions was put to Polen regarding his performance of his various general duties. He testified that Polen replied to almost every question that his performance had been 'hot and cold'. The inference was clear that his performance of his general duties had been sub-standard. He testified that a few days later Polen's employment was terminated and he told him: 'Frankly, you are not worth $10,000.00 from your record of...