Price v. Davis

• Decision Date: 11 January 1915
• Parties: JAMES L. PRICE, Respondent, v. R. M. DAVIS, Appellant
• Court: Kansas Court of Appeals

173 S.W. 64

187 Mo.App. 1

JAMES L. PRICE, Respondent, v. R. M. DAVIS, Appellant

Court of Appeals of Missouri, Kansas City

January 11, 1915

Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.

AFFIRMED.

Affirmed.

W. B Norris for appellant.

Culver & Phillip for respondent.

OPINION

JOHNSON, J.

This is a suit by a discharged employee for compensation for services rendered his employer and for damages resulting from his alleged wrongful discharge. Defendant was engaged in the merchandise brokerage business in St. Joseph, under the trade name of R. M. Davis Brokerage Company, which later was changed to the Davis-Price Brokerage Company, and plaintiff was employed as the real manager of the business from October 1, 1907 to February 10, 1913, when he was discharged.

The petition is in three counts. In the first it is alleged that on October 1, 1907, defendant employed plaintiff as salesman, buyer, solicitor and general office man for said business and "agreed to pay plaintiff for said services the sum of $ 100 per month and his necessary expenses up to April 1, 1910, after which date plaintiff was to receive his necessary expenses and $ 125 per month to the first day of June, 1911; that plaintiff rendered said services as agreed for the whole time above stated and that there is yet due plaintiff on account of said services so rendered the sum of $ 226.90."

In the second count plaintiff alleges that he was employed for one year from June 1, 1911; that defendant agreed to pay "for his said services the sum of $ 125 per month and necessary and proper expenses . . . and in addition, to pay plaintiff for his said services an amount equal to one-fourth of the net profits arising from the operation and conduct of said business during said period;" that plaintiff performed the services as agreed and that there was a remainder of $ 282.86 due him on account of salary and profits.

The contract alleged in the third count is that defendant employed plaintiff for a period of one year from June 1 1912, and "agreed to pay plaintiff for his said services so to be rendered a salary of one hundred and twenty-five dollars per month during said period of one year, and, in addition, to pay plaintiff for his said services an amount equal to one-half of the net profits earned during said time, after all expenses had been paid, said expenses to include a salary so to be paid plaintiff and a like salary of fifteen hundred dollars to be paid defendant. That it was also agreed in and by said contract that at the termination of said contract on the 31st day of May, 1913, an accounting should be had of the amount of the profits arising from the conduct of said business and that plaintiff should then be paid one-half of said net profits."

It is alleged that pursuant to said contract, which was in writing, plaintiff "faithfully rendered said services as agreed by him up to the 10th day of February, 1913, on which said last named date defendant, without any lawful cause or justification, discharged plaintiff and refused to permit him to continue in his said employment." Further it is alleged that plaintiff was paid $ 900 on account of salary, and "that the net profits earned in the conduct of said business up to the 10th day of February, 1913, were in excess of $ 5000, and that in addition there would have been large net profits earned if plaintiff had been permitted to continue to manage and conduct said business as agreed in said contract, that plaintiff has never been paid or received anything on account of said profits so earned and to be earned and that by reason of the breach of said contract by defendant, plaintiff has been damaged in the sum of $ 4000." No compensation for salary or expenses is claimed in this count and no reimbursement of expenses is demanded in either of the first two counts, the prayers of which are for the recovery of unpaid salary and profits.

Defendant filed an answer and a counterclaim in which he averred that during the employment alleged in the first count of the petition plaintiff overdrew his account in the sum of $ 545.02, and that during the second employment he was overpaid in the sum of $ 405.41. As to the third period the counterclaim alleges that plaintiff voluntarily abandoned the employment, established a brokerage business for himself in competition with defendant and that he "began by systematic method to undermine and destroy defendant's business and obtained a large number of customers and clients of defendant and by such action damaged defendant's business in the sum of $ 1000, and plaintiff collected a large sum of money which was due defendant and failed to account for the same for brokerage business obtained by the defendant, during the period between June 1, 1912 and February 10, 1913, to-wit: the sum of $ 400, by which said action on the part of plaintiff, defendant has been damaged in his said business in the sum of $ 1400, for which defendant asks judgment."

Defendant alleged in his answer "that since the 10th day of February, 1913, plaintiff has made the sum of $ 125 per month, and the sum of $ 1000 as profits derived to plaintiff from his said business."

Finding that a trial of the issues of fact raised by the pleadings would require the examination of a large account, the court appointed a referee "to take the testimony and report his findings of fact and conclusions of law." After hearing the evidence the referee gave the following declarations of law asked by plaintiff:

"If the court finds that plaintiff was paid less than the amount of salary he was to receive and his necessary expenses incurred on account of the business for the period of his employment covered by the first count of the petition, to-wit, from October 1, 1907, to May 31, 1911, then he is entitled to recover on said account the difference between said amount and the amount he was to receive under his contract."

"If the court finds from the evidence that plaintiff received less than the amount of his salary and one-fourth of the net profits, and actual expenses incurred on account of the business during the period covered by the second count of the petition, to-wit: From June 1, 1911, to May 31, 1912, then he is entitled to recover the difference between said amount and the amount he was to receive under the contract."

"If the court finds from the evidence that plaintiff was improperly discharged by defendant while employed under the written contract introduced in evidence, then plaintiff is entitled to recover on the third count of the petition the difference between the salary he actually received from other employment and the salary he was to receive under said contract for the year beginning June 1, 1912, and ending June 1, 1913, less the amount he was actually paid by defendants on account of said salary; and in addition thereto, such necessary expenses, if any, as were actually expended by him on account of the business carried on; and that he is entitled to recover, further, such damages, if any, as he has suffered on account of the loss of his proportion of the net profits which he was to receive and would have received if he had been permitted to carry out said contract, less what, if anything, he actually received on this account."

The material portion, of the referee's report is as follows:

"In the first count plaintiff seeks to recover the balance due him for wages and expenses for a period beginning on the first day of October, 1907, and ending on the 31st day of May, 1911.

"In the second count plaintiff seeks to recover of defendant the balance due him for wages and expenses, including one-fourth of the profits for a period beginning on the first day of June, 1911, and ending on the 31st day of May, 1912.

"In the third count plaintiff seeks to recover of the defendant the balance for wages and expenses, including plaintiff's proportion of the profits due him for a period beginning on the first day of June, 1912, and ending on the 10th day of February, 1913, the date on which plaintiff claims to have been discharged by the defendant.

"The employment for the time covered by the first and second counts of the petition was verbal, while the employment for the period of time covered by the third count thereof was in writing, and said contract was introduced in evidence and is returned herewith to the court.

"The answer to said petition and each count thereof was a general denial and a counterclaim.

FINDING OF FACTS.

There is no dispute about the employment having existed substantially as charged in each count of the petition.

During the first employment, that is from October, 1907, to May 31, 1911, plaintiff was to receive his expenses and a salary of $ 100 per month, and thereafter plaintiff claims he was to receive $ 125 per month as such salesman, solicitor and buyer. Defendant denies that plaintiff was to receive $ 125 per month from April 1, 1910, but admits that plaintiff's salary was raised about the first of January, 1911, to that sum.

The evidence, however, seems to bear out the contention of plaintiff, and I so find, from the evidence that plaintiff was to receive a salary of $ 125 per month, commencing April 1, 1910.

For the year beginning June 1, 1911, plaintiff was to receive $ 125 per month salary, his expenses and one-fourth of the net profits of the business.

For the period of one year, covered by the written contract, beginning June 1, 1912, plaintiff was to receive a salary of $ 125 per month and his expenses, and one-half of the net profits of the business.

Plaintiff charges, and I so find from the testimony that on February 10, 1913, the defendant, without any just cause, discharged the plaintiff from his employment, since which time ...