Rose v. Williamsville, G. & St. L. Ry. Co.

• Citation: 123 S.W. 946
• Court: Court of Appeal of Missouri (US)
• Decision Date: 14 December 1909
• Parties: ROSE v. WILLIAMSVILLE, G. & ST. L. RY. CO.

123 S.W. 946

ROSE v. WILLIAMSVILLE, G. & ST. L. RY. CO.

St. Louis Court of Appeals. Missouri.

December 14, 1909.

1. MASTER AND SERVANT (§ 7) — CONTRACT OF EMPLOYMENT — MODIFICATION.

Plaintiff was employed for a year as general manager and treasurer and to serve as a director of defendant railroad company at a specified salary. After serving part of the term, the control of defendant corporation passed into other hands, and plaintiff was relieved from the duties of treasurer and director, but continued as general manager, and was at all times willing to fill both offices, and neither party regarded the directorship as an essential part of the original employment. Held, that plaintiff's resignation of the office of treasurer and director did not constitute the making of a new contract so as to authorize his discharge before the end of the original term at defendant's election.

2. MASTER AND SERVANT (§ 41) — CONTRACT OF EMPLOYMENT — BREACH — MEASURE OF RECOVERY.

Where a servant working under a contract for a specified term is discharged without cause before the end of the term, he may recover the entire compensation agreed to be paid under the rule that, where an obligee waives or prevents performance by the obligor, the latter may recover as though he had performed the contract.

3. APPEAL AND ERROR (§ 1033) — REVIEW — PREJUDICE — INSTRUCTIONS.

An error in an instruction given for plaintiff, in requiring a finding that plaintiff continued to act as defendant's general manager and treasurer until July 8th, in order to justify a finding for him it being conceded that plaintiff ceased to act as treasurer two months before that date, was prejudicial to plaintiff but not to defendant; plaintiff being entitled to a verdict if he served as general manager until he was discharged without cause.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by W. B. Rose against the Williamsville, Greenville & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Gamble & Taylor, for appellant. Frank Richey and Campbell & Allison, for respondent.

GOODE, J.

On January 18, 1907, J. T. Long, president of the Williamsville, Greenville & St. Louis Railway Company, and acting for said company, addressed a letter to plaintiff, wherein he asked plaintiff to become "general manager and treasurer and to serve as director" of said company. The letter said plaintiff should assume full control of the railway, have power to employ men in all departments, and dismiss any employé plaintiff deemed inefficient, and that as treasurer all moneys of the railway company accruing from earnings and other sources should be remitted to plaintiff at St. Louis, and accounted for by him to the president. Plaintiff was to give a bond for the faithful performance of his duties and was to be paid $250 a month with necessary expenses. It was further said plaintiff, besides rendering the services stated, was to furnish free to the railway company all the available office room in rooms 508 and 509 Granite building, in St. Louis; further, that plaintiff should have the privilege of managing the business of the W. B. Rose Supply Company. If the agreement proved unsatisfactory to plaintiff, he should have the right to resign at any time by giving 30 days' notice, and at the expiration of the period waive all further demands for salary; otherwise the contract should remain in full force for the entire time stipulated, or for one year from January 18, 1907. On the day the proposal was made, plaintiff accepted the same by letter addressed to J. T. Long, as president of defendant, in which plaintiff reiterated the terms that had been stated to him. Thereafter plaintiff entered upon the discharge of his duties as general manager and treasurer of the railway company and as director. On the day the contract was made, the board of directors met, chose plaintiff second vice president of the company, approved his appointment by the president as general manager, and recited: "The position of general manager being accepted by him (Rose) in writing, such written acceptance being accepted by the directors as the terms and conditions on which he accepts said position." Plaintiff performed the duties of the offices, keeping treasurer's books in St. Louis and the treasurer's account in the National Bank of Commerce in said city. Toward the close of April, 1907, other parties acquired a controlling interest in the railway company and requested plaintiff to turn over his account as treasurer to the purchasers of said interest; they being Kansas City parties and wishing to keep the funds in Kansas City. At the written request of the purchasers, plaintiff, on April 30th, resigned his position as second vice president and treasurer, and a few days afterwards, or May 3d, received a letter from the president praising and thanking him for the excellent manner in which he had kept the books and accounts, and expressing regret at the change in the office. Plaintiff continued to act as general manager until July 8th, and defendant to pay him the same salary of $250 a month until July 1st, or for two months. On July 8th defendant, through C. H. Smalley, its then president, addressed a letter to plaintiff requesting him to tender his resignation as general manager, and, this not having been tendered on said day, he was notified in writing on the same day that he was discharged and had no further connection with the road in any capacity. The purpose of this action is to recover the salary alleged to be due under the original contract of employment from July 1, 1907, for the remainder of the year, which would expire January 18, 1908, and also to recover an expense plaintiff had incurred for the company for the use of a telephone during the month of June, and the expense of a trip made upon business of the company.

The petition alleges the contract of employment according to its...