Schiller v. Keuffel & Esser Co.
| Decision Date | 26 November 1963 |
| Parties | Frank C. SCHILLER, Appellant, v. KEUFFEL & ESSER CO., Inc., Respondent. |
| Court | Wisconsin Supreme Court |
Frank Schiller, with his wife as partner, had for many years operated Schiller Blueprint Company. They made blueprints and tracings and sold the types of materials, equipment and furniture used in the engineering department of industrial concerns and governmental units. They were the Milwaukee dealer for Keuffel & Esser Co., Inc. (K & E).
In 1958, Mr. Schiller was 68 or 69 years of age. He and his wife agreed with K & E to transfer their business, including lease, inventory, equipment, name and good will to a subsidiary corporation to be organized by K & E. The subsidiary assumed the lease and began operation of the business January 2, 1959. It has since been dissolved.
The 'basic plan' for the transfer was set forth in a letter from K & E dated December 3, 1958, and accepted by the Schillers. It provided for purchase by K & E of inventory and equipment, and payment therefor. It also provided that the subsidiary would adopt a corporate resolution, in form attached, (a) to pay Mr. Schiller, his heirs or assigns, $6,000 a year for five years, and (b) to employ him as a sales representative on an annual basis but up to five years at $500 per month.
The proposed resolution (omitting immaterial recitations) read as follows:
'Mr. R. Keller reported * * * that Frank C. Schiller has agreed that he will personally visit and otherwise communicate with customers who formerly did business with Schiller Blueprint Company and encourage them to do business hereafter with this corporation and Frank C. Schiller has further offered to become an employee of this corporation in the capacity of a special sales representative, under the direction of the management of this corporation, to call upon past customers of his partnership and other potential customers for this corporation as he may be directed and that in consideration of the services to be performed of his own volition and those to be performed as directed that the following resolution should be adopted. This resolution having been read to and considered by the members of the Board, it was moved, seconded and unanimously;
'RESOLVED:
'That this corporation pay to Frank C. Schiller, his heirs, executors or assigns the sum of $30,000. in annual installments of 6,000. as follows:
'January 1, 1959--$6,000.00
'January 1, 1960--6,000.00
'January 1, 1961--6,000.00
'January 1, 1962--6,000.00
'January 1, 1963--6,000.00
On January 2, 1959, the subsidiary adopted the resolution in substantially the form just quoted, except for the omission of the portion of the recital referring to the consideration for the resolution.
On June 14, 1960, the subsidiary corporation wrote Mr. Schiller affirming that the five annual payments would be made, but also stating:
On October 24, 1960, Mr. Schiller brought this action on the employment portion of the contract alleging he had fully performed his obligations except as prevented by K & E and until K & E terminated the employment without proper cause, alleging he was ready and willing to perform, and seeking judgment for the unpaid balance of $21,000.
K & E admitted that Schiller performed services in 1959, but denied that he performed services in 1960 and denied that it wrongfully discharged him.
At the trial Schiller testified in his own behalf. K & E offered no evidence except testimony by Schiller as an adverse party and portions of a deposition previously taken. K & E moved for a directed verdict and the court granted the motion.
On March 25, 1963, judgment was entered dismissing the complaint. Mr. Schiller appealed.
Additional facts will be referred to in the opinion.
Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey and Thomas W. Godfrey, Milwaukee, of counsel, for appellant.
Quarles, Herriott & Clemons, James C. Mallien, Milwaukee, of counsel, for respondent.
1. The testimony. '* * * A verdict should only be directed against a plaintiff where plaintiff's evidence, giving it the most-favorable construction it will reasonably bear, is insufficient to sustain a verdict in plaintiff's favor * * *.' 1
Applying the rule just stated, we may summarize the substance of Mr. Schiller's testimony as follows:
The bulk of Schiller's business came from 20 concerns. Schiller had customarily called on the individuals in charge of purchasing, mainly for the purpose of maintaining good will. He did not often take orders because in that type of business the customer orders materials or equipment as needed. His good-will operations consisted mainly of taking customers to lunch, ball games, and the like.
After the transfer a Mr. Berchim was in charge and a Mr. Zinny was sales manager. Schiller presented himself at the office in January, 1959, and asked for instructions as to his duties, but received none. Later, on his own initiative, he commenced calling on his old customers and endeavored to promote their good will toward K & E. Berchim and Zinny were hostile toward him; they failed to inform him as to difficulties which arose in filling orders from the customers on whom he called; he learned of these things from the customers, and the lack of cooperation from Berchim and Zinny embarrassed him. Schiller quoted list prices to customers, and Berchim and Zinny failed to inform him that they were quoting reduced prices to others on similar transactions. Schiller was available, and rendered considerable service on his own initiative during eight months of 1959, but was absent because of a trip, and later because of illness in the last part of 1959.
He was available for work at all times in 1960, but was not asked to perform any duties. In May, 1960, he talked with K & E's Chicago branch manager, whose territory included Wisconsin. They discussed the Milwaukee situation and Schiller said he would do anything the branch manager wanted him to do. The latter indicated there would be a change in the management at Milwaukee. Schiller received no further word until the branch manager told him his contract would be canceled.
Mr. Schiller testified on adverse examination that he did not do very much for K & E in January, 1960, and nothing thereafter; that this was of his own choice; that nothing but the lack of cooperation prevented him from coming to work or calling on customers.
2. The contract. All the documents, i. e., the letter setting forth the 'basic plan,' the attached proposed recital and resolution, and the form ultimately adopted, were prepared by officers...
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