Sheets v. Eales
| Decision Date | 04 June 1932 |
| Docket Number | 30590. |
| Parties | SHEETS v. EALES. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
One employed under contract fixing compensation at percentage of profits held not entitled to added compensation for overtime not specifically provided for.
1. Under the employment contract and the evidence of plaintiff offered in support of his claim for extra services of a kind similar to those to be performed under the contract, at a stipulated compensation, as stated in the opinion, plaintiff is not entitled to added compensation for extra services or overtime; the contract not having stipulated that additional compensation should be paid for overtime or for such extra services.
2. The evidence of plaintiff examined, and held to be insufficient to sustain his claim for additional compensation for what is termed extra services.
Appeal from District Court, Reno County; J. G. Somers, Judge.
Action by Daniel G. Sheets against H. L. Eales. Judgment for defendant, and plaintiff appeals.
One employed under contract fixing compensation at percentage of profits held not entitled to added compensation for overtime not specifically provided for.
C. M Williams, D. C. Martindell, and W. D. P. Carey, all of Hutchinson, for appellant.
Chas S. Fulton and W. A. Huxman, both of Hutchinson, for appellee.
In this action Daniel G. Sheets sued his employer, H. L. Eales, to recover compensation for extra services alleged to have been rendered to his employer which were unpaid and which he alleged amounted to $3,019.74. Plaintiff undertook to prove that defendant was indebted to him for services rendered under a written contract and also for extra services, but when his evidence was completed and he had rested, the court sustained defendant's demurrer to his evidence, holding that he had failed to establish a cause of action against the defendant.
There was an elaborate written contract of employment entered into by the parties on March 23, 1926, covering the services of plaintiff from January 1, 1926 to January 1, 1927. It was stipulated that plaintiff should assist defendant in carrying on the business of selling tires, tubes, gasoline, oils, grease, alcohol, and other antifreeze materials for automobiles, and also for general tire repairing, and should receive as compensation one-fourth of the net profits of all sales and for vulcanizing service. To provide for plaintiff's living expenses it was agreed that he might have a drawing account of $25 per week as against the anticipated net profits he was to receive. The contract defined "net profits" of the business to be those arising from the sale of commodities handled and from the vulcanizing after all salaries, rentals, and other expenses commonly termed and classified as "overhead" are paid, and it was further agreed that the term "expenses" should include purchase price of tools, fixtures, machinery, and general equipment as might be necessary to the proper conduct of the business. There was a stipulation too that the plaintiff should be interested only in net profits, and was not to acquire any ownership in the business itself nor in tools, fixtures, machinery or equipment. It contained a provision that the employee agrees to devote his entire time, skill, labor, and attention for the compensation stated, and devote his time to the business from 7 o'clock a. m. until closing time, the same to be regulated by the requirements of the business, which closing hour usually was about 10 p. m., and that the employee shall have his time off every other evening and every other Sunday.
Another provision was that the service might be terminated at any time by either party on giving the other ten days' notice in writing, and upon the payment to the employee of what may be coming to him, but that the employer should be the sole judge of the cause for discharge, and that any agreement or arrangement whereby the employee has heretofore been employed by the employer is canceled, released, and discharged.
Appellant claimed that he worked under this contract until the business was sold in July, 1929; that he worked 80 extra evenings, and 10 extra Sundays in 1926, and 8 extra Sundays and 68 extra evenings in 1927, which, under the contract, he was to have off. He gave testimony, too, to the effect that near the end of 1927, he told defendant he would have to have more money for 1928, and that defendant responded by saying "Don't worry, I will take care of you." In December of 1927, he said he told defendant that he would have to have $45 to $50 per week if he worked for him in 1928, but no change was made in the contract, and he said defendant replied, "Let it slide, and I will pay you a bonus at the end of the year that will make as much money." Plaintiff testified that defendant stated at one time, "We will agree on a settlement of the extra time which will be absolutely satisfactory." On another occasion he says, "I always have paid you for extra time and I will pay you from now...
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...25 A.L.R. 218, 107 A.L.R. 705; 35 Am.Jur., Master and Servant, § 66; 56 C.J.S. Master and Servant § 97(b); see also Sheets v. Eales, 135 Kan. 627, 11 P.2d 1020. The parties are agreed that plaintiff in this case was not under the protection of any wage and hour law, and the above principle ......
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