Ratcliffe v. Missouri Benefit Association

• Decision Date: 02 November 1914
• Parties: WILLIAM RATCLIFFE, Respondent, v. MISSOURI BENEFIT ASSOCIATION, Appellant
• Court: Kansas Court of Appeals

171 S.W. 32

184 Mo.App. 344

WILLIAM RATCLIFFE, Respondent, v. MISSOURI BENEFIT ASSOCIATION, Appellant

Court of Appeals of Missouri, Kansas City

November 2, 1914

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

Judgment reversed.

Frost & Frost and Martin E. Lawson for appellant.

(1) Instruction number 2 for the plaintiff is erroneous because it leaves the mixed question of law and fact to the jury to decide whether the terms mentioned in the letter of October 22, 1912, continued in force until November 29, 1913, and does not state under what conditions the so-called contract would continue or cease to continue. This is improper. Boot & Shoe Co. v. Bain, 46 Mo.App. 581; Estes v. Fry, 22 Mo.App. 80; Clem v. Railroad, 119 Mo.App. 245; Barton v. City of Odessa, 109 Mo.App 76. (2) The demurrer to the evidence should have been sustained, because the entire evidence shows on its face that the plaintiff cannot recover because he went to work under an agreement to receive twenty-five cents for each $ 100 application for persons between the age of five and fifteen years, and that he accepted checks without protest for many months based on that rate and without complaining about them and this, after he had once complained and had been told plainly that he would be paid on the changed rate. Acts may be as clear an indication of intent as words can be. 7 Am. & Eng. Ency. of Law (2 Ed.), 129.

Darl B Cross and R. H. Musser for respondent.

OPINION

JOHNSON, J.

Plaintiff sued in a justice court to recover a remainder due him for services rendered defendant under a contract of employment. Defendant does not deny that the services were rendered as alleged but claims the agreed compensation was paid in full. Defendant is a corporation engaged in a small way in the life insurance business with headquarters at Edgerton in Platte county. It issues policies for $ 100, $ 200 and $ 500, respectively, the premiums payable monthly, and accepts such risks on the lives of children over five years of age. One of the witnesses speaks of the business as "burial insurance." Plaintiff was a solicitor employed by defendant for about one year under an agreement that he was to receive a salary of $ 50 per month and a commission on each policy secured by him. The controversy which gave rise to this action is over the rate of commission plaintiff was to receive on each policy of $ 100 or $ 200 written on the life of a child between the ages of five and fifteen years. Plaintiff contends that the agreed commission was fifty cents on each policy of that class while defendant insists that it was twenty-five cents. It was agreed by the parties in the circuit court where the cause was tried on appeal that if the contract of employment fixed a rate as stated by plaintiff he is entitled to recover $ 180 from defendant, and that if defendant's version of the contract is correct, plaintiff has been paid in full for his services and is not entitled to recover in any sum.

This issue was decided in favor of plaintiff in the circuit court and defendant appealed. The principal contention of counsel for defendant is that the evidence most favorable to plaintiff does not tend to support his claim to the larger commission and therefore that defendant's demurrer to the evidence should have been sustained.

The employment of plaintiff began November 1, 1912. Two weeks or more before that date the president of the company visited plaintiff who was at Wallace in Buchanan county, for the purpose of offering him employment. In the conversation that ensued the president told plaintiff the salary would be fifty dollars per month and in addition the company would pay certain commissions among which was a commission of fifty cents on each application for a $ 100 or $ 200 policy procured by plaintiff. This offer was "taken under advisement" by plaintiff who went to Holden to transact some business. While there he wrote to defendant requesting that an offer be made in writing. Under date of October 22, 1912, defendant answered by letter stating the terms of its offer including the payment of a commission of fifty cents on each $ 100 and $ 200 application. Plaintiff did not answer that letter and on October 26th defendant wrote him another letter as follows:

"We are getting out some new advertising matter, and making some material changes in our association, and it will be necessary for you to come to the office before beginning the work for our association, and Mr. McComas requests that you come to our office on Friday, November 1st, so that we can give you full instruction in reference to the work, and explain to you the changes that we have made. Hoping this will meet with your approval, we are," etc.

Plaintiff went to Edgerton in response to this letter and was informed that defendant had lowered the rate of premiums on $ 100 and $ 200 policies issued to children between five and fifteen years of age and the officers of defendant state they informed plaintiff that his commission on such applications would be twenty-five cents instead of fifty cents each as stated in the letter of October 22nd.

Plaintiff states that his visit to the office which covered practically the whole day was occupied with a "rehearsal of the contract by which I was to work and I got instructions how I was to appoint collectors and what they were to have." We quote excerpts from his cross-examination: "Q. Now when you were there Mr. Sturgis and Mr. McComas explained to you it was necessary to make a change in the rates because of a change in the rate of insurance, didn't they? A. Not on my part. Q. Did they say there or did you...