Ragsdale v. Tom-Boy, Inc.
| Decision Date | 05 November 1958 |
| Docket Number | No. 29857,TOM-BO,I,29857 |
| Citation | 317 S.W.2d 679 |
| Parties | Steve RAGSDALE (Plaintiff), Respondent, v.nc. (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Daniel P. Reardon, Joseph G. Stewart, St. Louis, for appellant.
G. W. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.
DOERNER, Commissioner.
This is an action begun in the Circuit Court of the City of St. Louis, in which plaintiff sought the recovery of $30,273.13 upon an alleged contract of employment. Judgment below was for plaintiff in the sum of $5,321.00, from which, after the overruling of its timely motions, defendant has duly prosecuted its appeal to this court.
Defendant, Tom Boy, Inc., is a wholesale food company, owned in part by grocers, butchers, and other retailers of food. Its primary purpose is to act as a buying organization for its members, to whom it sells at a very small mark-up, so that they may in turn sell more cheaply, and meet the competition of chain stores. In addition, the defendant operates a warehouse and runs an advertising campaign for its members' stores.
Prior to June, 1951 plaintiff was employed as a consulting engineer by the United Fresh Fruit and Vegetable Association. His work consisted of analyzing the business operation of the members of the Association and of offering them advice as to how they could increase their sales and reduce their costs. In connection with his work he had occasion to call on the defendant three or four times, and on one or more of such visits the men in charge of defendant's produce department asked him if he would be willing to join their organization. Following discussions with Mr. L. A. Dauer defendant's then vice-president, plaintiff wrote out a letter in long hand addressed to Dauer advising him that he would accept the position offered him with the defendant, and setting forth the terms of the employment. Plaintiff's wife typed this letter, which was dated May 8, 1951, and mailed it. Plaintiff testified Dauer had asked him to send such a letter, for 'internal reasons within the organization,' and to avoid any misunderstanding. The following day plaintiff discovered that his wife had overlooked sending a copy to Mr. Krekeler, the president of defendant, as had been requested, and she typed another letter dated May 9, 1951, similarly addressed to Dauer, which was mailed to Krekeler. The defendant denied ever having received the letter of May 8, but admitted having received the one dated May 9, which read:
'1225 Appleton Ave.
Independence, Mo.
May 9, 1951.
'Mr. L. A. Dauer, Vice President
Tom Boy Stores. Inc.
4353 Clayton, Ave.
St. Louis, Mo.
'Dear Mr. Dauer:
'I am writing in connection with our telephone conversation today, wherein I reported I could accept the position you have offered with your organization, effective at the latest by July 1, 1951, or as soon before that date as possible. There is a good possibility the effective date can be as early as June 15, 1951. There will be no delays beyond July 1, 1951. I regret that special commitments make some delay necessary.
'We briefly discussed the recent meeting between you and Mr. Krekeler and myself in St. Louis. You commented it might be a good idea to cover some of the details in writing. As I understood our conversation, these basic points were a part of our verbal agreement:
'1. The position you have offered is considered by you as a permanent position in your organization.
'2. The title of the position will be Assistant Vice President in Charge of Perishables.
'3. The initial duties will first be in connection with getting the produce department into a profitable position, after which responsibilities in other departments may be assigned.
'4. The position will carry complete responsibility for all phases of operation in the produce department. All personnel will report to me and I will report to you.
'5. The basic salary will be $8500 per year. We will attempt to make 2% net profit. The amount in excess of 1% net profit for the fiscal year will be added to this basic salary. For example, if the yearly sales are $1,200,000 and the net profit is 2%, the salary for the year will be $12,000. Mr. Krekeler mentioned an addition might even be considered if the department was taken only out of a losing position.
'I will appreciate you confirming, or correcting the above understanding and effective date at your earliest convenience. After receiving that confirmation, the necessary final arrangements will be started.
'Your offer is a promising opportunity. I consider it as a real compliment to me and I am looking forward to a long and profitable relationship with you and your organization.
'Thank you again for your patience.
'Sincerely Yours,
/s/ Steve Ragsdale' The letter of May 8 was exactly the same, except that instead of the word 'the' preceding the words 'salary for the year will be $12,000' in sub-paragraph 5, the word 'that' was used, so that that subparagraph in the letter of May 8 read:
Shortly thereafter plaintiff received the following letter from defendant:
'May 11, 1951
'Mr. Steve Ragsdale
1225 Appleton Avenue
Independence, Missouri
'Dear Steve:
'Glad to hear from Mr. Dauer that you will be with us sometime prior to July 1. We have a grand opportunity in our produce department and I personally feel confident you can get the job done.
'Your letter is per all agreements excepting you forgot to mention we agreed to pay your moving expense to St. Louis, Steve, we won't have any trouble on salary. We want men with ability to make money for the Company. The Company wants to make at least 1% net on produce and any excess will be shared with the person responsible for the success.
'All points covered by your letter is as we agreed upon. We will be happy to have you associated with Tom Boy and will give you every assistance possible to help you get things on the right track in the shortest time possible.
'Yours very cordially,
'Tom Boy, Incorporated
/s/ Clem Krekeler
'Clemens G. Krekeler President'
Thereafter plaintiff severed his connection with his other activities, moved from Independence, Missouri, where he had been living, to St. Louis, and began his employment with the defendant on June 18, 1951, being given complete charge of its fruit and vegetable department. He revised its sales and buying programs, its method of handling and delivering merchandise, and endeavored to assist its customers, the retailers, in increasing their sales and profits. As a result, while the defendant's fruit and vegetable department had lost money during the preceding eighteen months, under plaintiff's direction it became a profitable operation.
From the time he started to work for the defendant on June 18, 1951, until the end of the defendant's fiscal year, in April, 1952, plaintiff was paid a salary on the basis of $8,500 per year. At that time he had a discussion with defendant, as a result of which his rate of pay was increased from $8,500 per year to $12,000 per year, retroactive to June 18, 1951, by the payment to him on April 26, 1952 of the sum of $2,423.32. Plaintiff introduced in evidence a copy of an inter-office memorandum which he testified was given to him by Ollie Anderson, secretary-treasurer of defendant, at the time he was paid that sum.
Beginning with the period ending May 26, 1951 plaintiff received periodically from the defendant a report showing the results of the operation of the produce department for the preceding four weeks' period. None were furnished plaintiff in the months of April, May, and June, 1952, but after he had had his discussion regarding the adjustment of the payments to him, and at his insistence, the furnishing of such reports was resumed. The reports, which were received in evidence, showed the gross sales figure, less the returns, which when subtracted from the gross sales gave the net sales figure; the cost of the goods sold was not shown in the reports, but the figure given for percentage of gross profit was stated, as was the amount in dollars of gross profit (obtained by multiplying net sales by the percentage of profit). To the figure for gross profit there was added such other income as charges for rural drayage, and from the resulting sum there was subtracted the total of the operating expenses of salaries, wages, truck rental, depreciation, telephone, office expenses, miscellaneous expenses, allocated or overall administrative expenses, the difference being given on the reports as 'net profit or (loss).'
Plaintiff submitted a letter of resignation to the defendant around the third or fourth week in December, 1952, but continued to work for it until the early part of January, 1953. He testified that after he had received the adjustment of his monthly check, in April 1952, he asked more than once for the figures on the net profit of the produce department for the fiscal year ending in April 1952, but that he never received them. After he left the defendant's employment he made oral demands to Mr. Krekeler by telephone, in January or February 1953, as to when they were going to settle up, and was told that they didn't know what they were going to do with the produce department. Plaintiff's action was instituted on March 16, 1955. Attached to his petition was a copy of his letter of May 8 to Mr. Dauer. In his preparation for trial, plaintiff filed a request that defendant admit or deny that the copy of the letter of May 8 was a true copy of the...
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