Shear Co. v. Harrington

• Decision Date: 30 October 1924
• Docket Number: (No. 79.)
• Citation: 266 S.W. 554
• Parties: SHEAR CO. v. HARRINGTON.
• Court: Texas Court of Appeals

266 S.W. 554

SHEAR CO. v. HARRINGTON.

(No. 79.)

Court of Civil Appeals of Texas. Waco.

October 30, 1924.

Rehearing Denied December 11, 1924.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by H. P. Harrington against the Shear Company Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Allan V. McDonnell, of Waco, for appellant.

Collins, Dupree & Crenshaw, of Hillsboro, for appellee.

GALLAGHER, C. J.

H. P. Harrington, appellee herein, brought this suit in the district court to recover from the Shear Company, appellant herein, the sum of $1,140, claimed to be due on contract alleged to exist between him and said company The parties will be designated as in the trial court.

Plaintiff, at the time the contract sued on was entered into, was a man about 76 years of age. About 2 years before he had had one of his legs amputated. He had been at the time in the employ of defendant more than 20 years. He was then serving as shipping clerk at defendant's branch house at Hillsboro. Some time in February, 1921, defendant's vice president, Mr. Harold Shear, approached defendant on the subject of retiring him on a salary. Plaintiff's testimony concerning this conversation was as follows:

"I had a conversation with Harold Shear at that time. He came back to my office in the rear of the building and told me that they were going to retire me on a salary, but didn't state the salary, and that I was to come and go just like I felt like it, and at any time I could — they wanted me to give them any assistance, why, that I would render it to them, help out any way in a rush or anything. I told him that I didn't want to be retired; that I was perfectly able to do my work and that I didn't want to be retired. I don't think he made any answer to that. That was about the sum and substance of the conversation."

On cross-examination plaintiff testified concerning the same conversation as follows:

"It was in that conversation that I told him that I would be glad to do any work for them in the future. It was after he said he would retire me on a salary I guess. I said, `I will be glad to do any work for you in the future that you may call on me to do;' and I think he thanked me for that offer. Then the next thing was the letter. Then I replied to that."

The letter referred to in the above testimony was addressed to plaintiff. It was dated February 5, 1921, and was as follows:

"Dear Mr. Harrington: You will remember that some time ago the writer took up with you the matter of finally retiring you with salary. We now think that this is the logical time to make whatever change will be necessary there, and we think that in 30 days, or whenever we can secure a man in whom we have confidence, we would be willing to retire you with salary of $75 per month the rest of your life. We have a man in mind, and you may expect to hear from us very soon as to the exact time we will need you there. We want you to feel that we look on you as a faithful servant, who has through a long period of years given us good service. We do not offer you this salary as charity. We believe that you are fully entitled to it on account of long and diligent service in our employ. We want you to feel free to come and go as you like at the Hillsboro house, and, any time you can come to Waco, we will be glad to see you. With kindest personal regards, very truly yours, Harold Shear, Vice President."

Plaintiff's reply thereto was addressed to Mr. Shear, was dated February 7, 1921, and was as follows:

"Dear Mr. Shear: This will acknowledge receipt of your letter of the fifth concerning my final retirement from active service as shipping clerk of the Hillsboro house with a salary of $75 per month for the rest of my life. I have realized for some time past that it was only a question of time until I would have to submit to the inevitable, and as much as I regret to have to retire from active service, I will do so at your request and as your wish, believing that it is for the best interest of the Shear Company who I have always endeavored to serve to the best of my ability. I accept your most generous offer and heartily thank you for same, and assure you that after leaving the active service of the company that if occasion where I can be of any service in the future I am at your command. I am ready to turn the position over to my successor on receipt of your instructions to do so. With kindest personal regards for both yourself and the Shear Company, I am very truly yours, H. P. Harrington."

Plaintiff was relieved from service on March 1, 1921. Defendant paid plaintiff the sum of $75 per month from the date of his retirement to and including the month of August, 1921. On August 26, 1921, defendant's president, Mrs. Shear, wrote plaintiff the following letter:

"My Dear Mr. Harrington: In view of the continued depression in business and the probability of another year with little or no profit to the business, it has become necessary to go very thoroughly into the matter of lowering the expense of doing business. You have served the company long and faithfully and we desire to follow Mr. Shear's policy of giving recognition of this after the years of usefulness are past, especially when a man is dependent upon his monthly wage. This we know is not the case with you, but in our `fat' years we were willing to ignore this fact and allow your salary to continue. In an intensive effort to bring down our expense account, made very heavy by a large decrease in the volume of business, we find it necessary to gauge our generosity upon the basis of positive needs, to make a reduction of your salary from eighty-one ($81.00) to sixty ($60.00) dollars. Hoping this will be no hardship to you, and with kindest greetings from the company to an old and highly respected employee, I remain, very sincerely, Mary T. Shear, President."

Defendant continued making payments to plaintiff at the rate of $60 a month from September, 1921, to and including March, 1922, when such payments ceased. On March 18, 1922, defendant's president, Mrs. Shear, wrote the following letter to plaintiff:

"Dear Sir: I regret to inform you that owing to the general business depression which is reflected in the Shear Company as in all mercantile business, we do not feel justified in continuing the allowance to you of $60 per month. The April check will be forwarded as usual. Hoping this will be no serious inconvenience to you, and with kind personal regards and good wishes, sincerely, Mary T. Shear, President."

No further payments were made. About one year after plaintiff was so retired, but before the receipt of the above letter, the shipping clerk of defendant's branch house at Hillsboro was taken sick, and its manager at that place sent his car for plaintiff and requested him to serve as shipping clerk, and he did so for four days. Nothing was said about paying him for such services and he did not say anything about being paid therefor. Except on that occasion, plaintiff has never been called on to render any service for defendant and has rendered no such service. He testified that he considered himself bound to hold himself in readiness to render services at any time, and that he did do so, and that for that reason he had not attempted to secure other employment. He further testified that, if he had desired to secure other employment, he could have done so at a remuneration in excess of $60 per month. The sum sued for is claimed as the aggregate of said monthly payments of $60 per month for 19 consecutive months, beginning with April, 1922.

The case was tried before a jury and submitted on special issues. The jury found in response to such issues, in substance, that plaintiff and defendant contracted and agreed that plaintiff would be retired from active service at a salary of $75 per month for the rest of his life, in consideration of plaintiff's agreement that he would hold himself in readiness at all times to perform service for the defendant whenever called upon; that plaintiff afterwards acquiesced in the reduction of said sum to $60 per...