S. H. Kress & Co. v. Evans

• Decision Date: 05 May 1920
• Docket Number: Civil 1765
• Citation: 21 Ariz. 442,189 P. 625
• Parties: S. H. KRESS & COMPANY, a Corporation, Appellant, v. H. T. EVANS, Appellee
• Court: Arizona Supreme Court

189 P. 625

21 Ariz. 442

S. H. KRESS & COMPANY, a Corporation, Appellant, v. H. T. EVANS, Appellee

Civil No. 1765

Supreme Court of Arizona

May 5, 1920

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Reversed and new trial ordered.

STATEMENT OF FACTS.

The appellee, hereinafter referred to as plaintiff, sued the appellant, hereinafter referred to as defendant, to recover a balance of $606, alleged to be due him under an oral contract of employment with the defendant as manager of the defendant's store at Phoenix, Arizona. By way of answer to plaintiff's complaint, the defendant pleaded a signed instrument entitled "Arrangement Sheet" and alleged that this arrangement sheet was the contract of employment and the only contract made between the plaintiff and the defendant. The instrument, omitting dates and other immaterial matter, is as follows:

" . . In consideration of your continuing me in charge of your store in Phoenix, Ariz., I hereby agree to give my whole time and attention to your business, obey all your instructions honestly discharge my duties to the best of my ability, and safely guard your property and interests, delivering the same to you immediately upon your demand; my position to be a weekly employment under the conditions herein set forth, at a salary of eighteen ($18.00) dollars per week, payable as arranged. . . . If I am retained in said position continuously until December 31, 1917 (my retention voluntarily by you until said date being an express condition precedent), I am to receive on or about March 1st of the following year that share of the net profits derived from said store to which you in your judgment may deem me entitled by reason of my individual efficiency in managing and developing the business of said store and increasing its net earnings over and above the usual normal sales and profit increases which come as a natural consequence to all progressive business, less what I have drawn as my said salary, after the net profits have been determined at the regular annual inventory, and the usual settlement made according to your custom, but one of the conditions precedent to any such payment is that I so conduct said store that it will at least produce the average, regular and correct merchandise profit earned by other S. H. Kress & Co. stores of similar class, and having equal freight location. . . . My said employment may be terminated by you at any time without notice to me, except that in event of such termination without notice I am to be credited or receive an amount equal to my said weekly salary for three weeks in advance, and if terminated by you, or if I leave your service prior to the end of said year, I shall not as aforesaid, participate in any net profits. If I desire to leave your employment, I will give you at least three weeks' written notice of such intention, and before departure I will not mention my leaving to the help or needlessly to outsiders. . . . This constitutes the sole arrangement between us, the consideration being one dollar, and other good and valuable considerations mutually exchanged, and contains all the terms and conditions of my said employment. I understand that by continuing me in your employment you accept the above arrangement. Before signing this arrangement I have read same carefully and understand it fully.

"[Signed] H. T. EVANS.

"Witness C. W. KRESS."

The plaintiff filed a reply to the defendant's answer in which he admits that he executed the instrument entitled "Arrangement Sheet," pleaded by the defendant "but denies that said statement constituted the sole and only arrangement made between the plaintiff and the defendant with respect to his employment for the year 1917, and in that behalf alleges that for a number of years prior to the year 1917 the plaintiff had been in the employ of the defendant in the capacity of manager of its various stores, and that for the year 1916 the compensation paid to the plaintiff by the defendant for the plaintiff's services was an amount equivalent to one and one-half per cent of the gross business done by the Phoenix store for said year; that prior to the signing of the arrangement sheet set forth in defendant's answer, and as the sole inducement thereto, the defendant stated to the plaintiff that his compensation would be measured by the same percentage of the gross business done by the said Phoenix store as was paid to him during the year 1916; that at the time and prior to the signing of the said arrangement sheet it was thoroughly understood and agreed between the parties that said sheet was to be taken and considered as a letter of instructions to the plaintiff and as a measure of the drawing salary which plaintiff would be entitled to during the year; that the plaintiff's salary and compensation was to be measured by the following clause or provision of said arrangement sheet, to wit: 'if I am retained in said position continuously until December 31 1917 (my retention voluntarily by you until said date being an express condition precedent), I am to receive on or about March 1st of following year that share of the net profits derived from said store for said year to which you in your judgment may deem me entitled by reason of my individual efficiency in managing and developing the business of said store and increasing its net earnings over and above the usual normal sales and profit increases which come as a natural consequence to all progressive businesses, less what I have drawn as my said salary, after the said net profits have been determined at the regular inventory, and the usual settlement made according to your custom, but one of the conditions precedent of...