South Side Buick Auto Co. v. Schmitter

• Decision Date: 01 May 1928
• Docket Number: No. 20234.,20234.
• Citation: South Side Buick Auto Co. v. Schmitter, 5 S.W.2d 687 (Mo. App. 1928)
• Parties: SOUTH SIDE BUICK AUTO CO. v. SCHMITTER.
• Court: Missouri Court of Appeals

5 S.W.2d 687

SOUTH SIDE BUICK AUTO CO. v. SCHMITTER.

No. 20234.

St. Louis Court of Appeals. Missouri.

May 1, 1928.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

"Not to be officially published."

Action by the South Side Buick Auto Company against J. J. Schmitter, wherein defendant filed a counterclaim. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Wayne Ely and Norman Begeman, both of St. Louis, for appellant.

E. McD. Stevens, of Clayton, and James T. Roberts, of St. Louis, for respondent.

SUTTON, C.

This is an action on a promissory note executed by defendant to plaintiff. The petition is conventional. The answer sets up a counterclaim, wherein it is charged that defendant was employed for one year by plaintiff as sales manager, with a guaranteed salary of $5,000 per year, payable on the 1st day of August, 1925, and with a drawing account of $300 per month, and that after the defendant had served the plaintiff as sales manager for seven months, he was wrongfully discharged by plaintiff, and prays damages for such wrongful discharge. The reply is a general denial.

The trial, with a jury, resulted in a verdict in favor of plaintiff on his cause of action for $441.50, which is the face amount of the note with interest, and in favor of defendant on his counterclaim for $1,400, and judgment was given in favor of defendant against plaintiff for $958.50. Plaintiff appeals.

The evidence for defendant shows that he was employed by the plaintiff as its sales manager for a term of one year expiring August 1, 1925, at a salary of $300 per month, payable monthly, with a guaranteed bonus of $1,400 to be paid at the end of the year, making his entire salary for the year $5,000, and that at the expiration of seven months' service as sales manager, pursuant to his employment, he was wrongfully discharged by plaintiff. The note sued on was given for money drawn by defendant from plaintiff while in the plaintiff's service beyond the sum of $300 per month which he was entitled to draw monthly under the contract of employment. The evidence also shows that defendant, immediately after his discharge, obtained employment with the Kuhs-Buick Auto Company, and worked for them about two months, and then worked about three months for the Studebaker Company.

Plaintiff complains of instruction No. 2, given at the instance of the defendant, advising the jury that if they found that defendant was employed by plaintiff for a period of one year as sales manager and that plaintiff guaranteed to pay the defendant a salary of $5,000 per year payable on the 1st day of August, 1925, and that the defendant was to draw against said salary the sum of $300 per month, and in addition thereto was to receive a bonus sufficient to make said $5,000 per year, and that defendant was wrongfully discharged by plaintiff, then the jury would find in favor of defendant on his counterclaim and assess his damages thereon at the amount of money defendant would have received as bonus if he had not been discharged.

The plaintiff complains of this instruction here on the ground that it does not authorize the jury to allow plaintiff credit for whatever amount the defendant received for other employment subsequent to his discharge by plaintiff within the term of his employment under his contract with plaintiff. The fault of this complaint, which is fatal, is that there was no evidence to show what the defendant's earnings amounted to subsequent to his discharge. The defendant was prima facie entitled to recover by way of damages what he would have earned under his contract of employment had he been permitted to fully perform it. The burden was on the plaintiff to show, in mitigation of such damages, by evidence, if he could, what, if anything, the defendant earned in the employment of others subsequent to his discharge by plaintiff within the term of his employment under his contract with plaintiff. Puller v. Royal Casualty Co., 271 Mo. 369, 196 S. W. 755; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S. W. 151; Tenzer v. Gilmore 114 Mo. App. 210, 89 S. W. 341; Ross v. Grand Pants Co., 170 Mo. App. 291, 156 S. W. 92; Duerkob v. Brown (Mo. App.) 255 S. W. 962. Though the evidence shows that d...