Truitt v. Rothschild-Greenfield Co.

• Decision Date: 02 December 1930
• Docket Number: No. 21429.,21429.
• Citation: 32 S.W.2d 770
• Parties: TRUITT v. ROTHSCHILD-GREENFIELD CO.
• Court: Missouri Court of Appeals

32 S.W.2d 770

TRUITT v. ROTHSCHILD-GREENFIELD CO.

No. 21429.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Lavetta Truitt against the Rothschild-Greenfield Company. From an order sustaining plaintiff's motion to set aside an involuntary nonsuit at the close of the plaintiff's case, the defendant appeals.

Affirmed, and case remanded.

Stern & Burnett, of St. Louis, for appellant.

Gillespie & Dempsey and Joseph A. Broderick, all of St. Louis, for respondent.

HAID, P. J.

This is an appeal from an order sustaining plaintiff's motion to set aside an involuntary nonsuit.

The suit was one for the breach of an alleged contract of employment of plaintiff by the defendant. Plaintiff's petition alleged that on or about August 18, 1928, plaintiff and defendant entered into a contract of employment whereby plaintiff was to conduct a millinery department in the store of defendant at St. Louis for a period of one year, and agreed to pay her a salary therefor in the sum of $50 per week for the first two months of said year and a salary of $65 per week for the remaining ten months of said year, which contract the plaintiff accepted; that plaintiff entered upon the duties of said employment on August 23, 1928, and continued therein until September 11, 1928, when she was wrongfully discharged from said employment; that there is owing to plaintiff for salary earned between August 23, 1928, and September 11, 1928, and for the remainder of said period of one year for which she was employed and prayed judgment for $3,260. The defendant's answer was a general denial.

At the close of the plaintiff's case the defendant requested an instruction in the nature of a demurrer to the evidence to the effect that the contract upon which plaintiff sought recovery was within the statute of frauds (Rev. St. 1919, § 2169). Thereupon the plaintiff took a nonsuit with leave to move to set it aside, and in due time filed a motion to set aside the involuntary nonsuit. The court granted the motion upon the sixth ground thereof, to wit, that plaintiff was entitled, under the evidence, to recover, or to have the question submitted to the jury whether she might recover, for the amount of time she actually worked and for which she was not paid.

The defendant contends that plaintiff was not entitled, under the pleadings, to go to the jury on her right to recover in quantum meruit. The plaintiff responds that, even if, under the pleadings, she was not entitled to go to the jury on quantum meruit, the court was nevertheless justified in granting a new trial for the reason that it had erred in holding that the contract was within the statute of frauds.

The plaintiff alone testified in support of her cause of action, and her testimony was to the effect that on August 4, 1928, she talked to Mr. Rothschild of the defendant company and was requested to return later and talk to Mr. Waldman; that on August 11 she did have a talk with Mr. Waldman and asked for a salary of $65 a week; that she told him she would not sell out the millinery business she was conducting unless the position with the defendant was going to be for a year; that Mr. Waldman informed her they would get in touch with her later, but advised her to do no buying for her own shop until he talked to her later; that on August 18, Mr. Waldman called her and informed her that they had decided to give her the department, but, as she had not any New York experience in buying, they would start her at $50 a week, and, after she had been there a couple of months and made a trip to New York, they would pay her $65 per week; that she again informed him that she could not accept unless it would run for a year from the time they accepted her and he said, "That is perfectly all right"; that on August 23 she had a call from Mr. Waldman to come over which she did, and went to work in the department; that she was discharged on September 11 1928, not having been paid anything for the time she was there. On cross-examination she testified that her salary was to commence from the time that she accepted the position on August 18; that she was informed that her salary would begin from the time she accepted the position. The attention of the witness was then called to her deposition which was taken shortly after the suit was filed and the record discloses the following testimony:

"Q. Now I will ask you, these are questions at the time your deposition was taken and I will read you the questions and see what you answered. Now I will ask you, Mrs. Truitt, whether this question was asked you and you gave this answer, these questions rather and you gave this answer, reading now from bottom of page 18: `Q. How did this question of custom come up, the custom of employing you for a year? A. Well, I just told him that I would not work for less than a year, that I would not accept the position for less than a year. They hired their buyer by the year. * * * Q. Well now, when you say a year, what do you mean, a year from when? A. From the time I started.'

"Q. Now do you remember those questions being asked you? A. Yes, sir.

"Q. Do you remember those answers? A. Yes, sir.

"Q. Now turn to page twenty-six and I will ask you if these questions were asked you: `Q. You commenced working for them on the twenty-third day? A. Well, just getting sales girls; I was in and out of the store. Q. When did your salary commence? A. My salary commenced, or I was supposed to start on the twenty-ninth, but the department was not in any condition for me to start marketing goods so I started on the thirtieth. Q. That is when your salary commenced? A. Yes. Q. The thirtieth of September? A. No, sir. Q. The thirteenth of August? A. Yes, sir.'

"The Witness: That is right, I was in the store, went into the store.

"Q. That is when your salary commenced? A. My salary should commence the day that I accepted the position.

"Q. Is it should, or did it? A. It did commence.

"Q. On what date? A. On the eighteenth day of August.

"Q. Then, Mrs. Truitt, each and every one of these statements that you made when I asked you...