Reiter v. Standard Scale & Supply Co.

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Reiter v. Standard Scale & Supply Co., 237 Ill. 374, 86 N.E. 745 (Ill. 1908)
• Decision Date: 15 December 1908
• Parties: REITER v. STANDARD SCALE & SUPPLY CO.

237 Ill. 374

86 N.E. 745

REITER

v.STANDARD SCALE & SUPPLY CO.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by Edward Reiter against the Standard Scale & Supply Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Winkler, Baker & Holder, for appellant.

Ashcraft & Ashcraft (Charles F. Rathbun and E. M. Ashcraft, of counsel), for appellee.

CARTER, J.

This is an action of assumpsit brought November 6, 1906, in the circuit court of Cook county, to recover installments of salary of appellee for the months of May to October, 1906, inclusive, at $300 a month. Judgment for $1,700 was entered on the verdict, and, the Appellate Court for the First District having affirmed the judgment, the cause was thereupon appealed to this court.

The agreement was in writing, and originally made with the Standard Scale & Supply Company, Limited, and afterward assumed by appellant. It provided that appellee should act as manager of said company's branch house in Chicago for the period from March 1, 1904, to December 31, 1911, at $3,600 a year, payable in monthly installments of $300, and a certain share of the net profits of said branch house, and should give ‘his best services for the promotion and welfare of the business.’ The evidence tends to show that as early as October, 1905, appellant had become dissatisfied with the results of the Chicago branch, and asked for appellee's resignation. He remained in his position, however, in charge of the office and his salary was paid up to and including April, 1906. During a part of May and June appellee was ill and away from the office a portion of the time. July 3, 1906, appellant wrote that it was an opportune time for appellee to offer his resignation. Appellee by letter refused to do this. Appellant on July 17th wrote again, stating that the appellee's ‘management of the business has been so unprofitable as to make it necessary for us to have your resignation. We are not liable for unearned salary during your absence. We desire to close the matter speedily and amicably, if possible, and will be glad to have a proposition from you so as to wind up the affair at once, and only a reasonable proposition can be considered.’ Apparently appellee did not reply to this letter, and on July 31st, when he went back to the office, he was shown by Mindrum, one of the salesmen who had been temporarily in charge of the office during appellee's sickness, a telegram directing Mindrum to ‘assume charge Chicago house; refuse to recognize Mr. Reiter as manager.’ Appellee thereupon collected his personal effects and left the office. The next day he received a letter again asking his resignation. August 5th Frank Gill, then president of appellant company, came to Chicago and talked the matter over with appellee. Appellee testifies that he told Gill that he was ready to go back to work the next morning and take the management, and Gill replied, ‘No; we want you to resign;’ that substantially this answer was returned to a number of appellee's suggestions, and appellee said he would not resign, that he was going to hold them to the contract; that he also asked Gill if he was to consider that he had been discharged, and the only answer was, ‘We want you to resign.’ The appellee testified that he and Gill had another interview a few days later at the Grand Pacific Hotel, in Chicago, and substantially the same conversation was had; that appellee then said to Gill: ‘I won't resign. If I don't resign, I suppose you have got to discharge me, or else I will go back to work.’ Gill said, ‘I think you would rather resign’-that Gill asked him to make a proposition, and finally appellee said he would resign and cancel the contract if the company would pay him $5,000. Gill then made a counter proposition that he would give the appellee $1,000 and a further sum contingent on a certain claim; that no agreement was reached, and, on their separation, Gill stated that he was to be in Chicago several days and in the meantime appellee should consider the counterproposition. Appellee replied that he could not consider it, and asked if he should go down to the office Monday morning, ‘and he [Gill] said, ‘No,’ don't come to the office until I notify you.' Those were the last words we had with each other.' Appellee testified that he never saw Gill thereafter. On August 20th, and again on October 1st, he wrote letters to the company, saying, among other things, that he had refused to resign as requested, and was left in doubt as to whether he was expected to remain in charge of the business as manager; that he had called at the office to take charge of the business, and Mindrum stated that under instructions from the company he could not permit it. Appellee further testified that he had kept himself in readiness from the time he had talked with Mr. Gill to go back to work at any time. Gill's testimony was not taken, but an affidavit was allowed to be introduced in evidence stating that, if he was present, he would testify to certain things. For the purpose of this decision, it is unnecessary to consider or state the contents of this affidavit.

As we understand appellant's argument, it is contended that the proof shows that the appellee was discharged when Mindrum took possession of the office under the telegram of instructions; that he could not recover in this action for wages after that date; that whatever he did recover must be in an action for damages for his discharge; and that he should only have recovered for the months of May, June, and July for what his services were actually worth, and that the jury allowed a greater sum for those months than the evidence justified. Most, if not all, of these are questions of fact to be determined by the jury, the trial court, and the Appellate Court. This court has consistently held in numerous decisions since the Appellate Court act was passed, some 30 years ago, that it was not the province of this court to determine or pass upon such questions further than to ascertain whether or not there was in the record evidence fairly tending to prove the facts alleged in the declaration. The weight to be given to the evidence must be submitted to the jury, and, when their finding of fact has been approved by the trial and Appellate Courts, no question of fact as to whether one witness' story is more reasonable or credible than another, whether the evidence is sufficient to support the verdict, or whether the weight or preponderance of the evidence is against the verdict of the jury, can be raised here. We can, therefore, only examine the record so far as to enable us to determine whether there is any evidence fairly tending to support plaintiff's cause of action and whether the rules of law have been properly applied by the trial court. Frazer v. Howe, 106 Ill. 563;Lake Shore & Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773,30 L. R. A. 33;Cicero & Proviso Street Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823,31 L. R. A. 331;Offutt v. World's Columbian Exposition, 175 Ill. 472, 51 N. E. 651;Libby, McNeill & Libby v Cook, 222 Ill. 206, 78 N. E. 599. The question whether the evidence fairly tends to establish a cause of action can only be...