Truskett v. Rice Bros. Live Stock Commission Co.

• Decision Date: 22 November 1915
• Docket Number: No. 11434.,11434.
• Citation: 180 S.W. 1048
• Parties: TRUSKETT v. RICE BROS. LIVE STOCK COMMISSION CO.
• Court: Missouri Court of Appeals

180 S.W. 1048

TRUSKETT v. RICE BROS. LIVE STOCK COMMISSION CO.

No. 11434.

Kansas City Court of Appeals, Missouri.

November 22, 1915.

Rehearing Denied December 18, 1915.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by Elsie Pearl Truskett (formerly Elsie Pearl Archer) against the Rice Bros. Live Stock Commission Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stubenrauch & Hartz, of Kansas City, for appellant. Calvin & Rea, of Kansas City, for respondent.

JOHNSON, J.

This suit is for the breach of a contract of employment entered into by plaintiff with defendant January 22, 1912, which plaintiff alleges was to continue for one year from the first day of the following month. The employment was continued until July 1, 1912, a period of five months, when plaintiff was discharged without cause. In addition to a general denial the answer interposed affirmative defenses, tie nature of which will appear in our discussion of the case. The verdict was for plaintiff in the sum of $650 being seven months salary less $50 earned by her in other employment. Defendant appealed.

The fact is conceded that plaintiff was employed on the date alleged at a salary of $100 per month to solicit business for defendant, a corporation engaged in the live stock commission business at the Kansas City Stockyards. The contract was entered into on behalf of defendant by W. H. Rice, its president, and was not reduced to writing. Plaintiff testified that it included an agreement that she was to be employed for the definite term of one year, beginning February 1, 1912, while Mr. Rice is just as positive that he agreed to give her a trial for two months from that date with the understanding that if her services were satisfactory her employment in that position would be continued indefinitely.

The evidence shows beyond question that plaintiff proved to be an industrious and competent servant, and that her efforts to secure new business were successful, but on March 26, 1912, just before the expiration of the alleged probationary period, defendant, over the signature of O. A. Reid (whose official position was not disclosed), wrote her from its Chicago office as follows:

"Probably your case has received more consideration than any other among the various changes that have been contemplated at that point for in some respects you have done remarkably well, but the main objection we can see is the fact that upon our expense you are building up a business that will more than likely be to your benefit at some future time than it will be to ours. We hardly believe that it can prove profitable both to you and to us in the long run and as you would prefer to make a change now than you would at some later date, and as we could offer no permanent arrangements from year to year, we think it will be best for you and for us to cancel our arrangements. Wishing you success in your efforts we are," etc.

Plaintiff wrote immediately to Rice, the president, who then was in Chicago, inclosing three or four letters of recommendation to other commission dealers, with the request that he sign and return them to her. He complied with this request, he says, to aid her to secure another position. One of these letters, received in evidence over the objection of defendant, was as follows:

                    "Rice Brothers, Live Stock Specialists
                            "Kansas City Stockyards
                                           "March 29th, 1912
                

"Mr. Sam Woolard, Wichita, Kansas—Dear Sir:

"I have learned from Miss Truskett that you were about to employ her at the time that I employed her, the first of February, 1912, and I wish to say to you in Miss Truskett's behalf that she has in no way fallen short of our expectations, and while I employed her for the period of one year at a salary of one hundred dollars per month, I am letting her go at this time for the one and only reason that we are changing the policy of conducting our business, and we feel that we do not need her at this time. There has been no dissatisfaction whatever with Miss Truskett's work or conduct, she has produced highly pleasing results in the way of obtaining new shippers for our firm, and I most heartily recommend her to you as an able business woman and a most efficient letter writer. Yours very truly, W. H. Rice."

The letter written by Reid discharging plaintiff evidently was countermanded by Rice. The evidence is silent on that subject, but plaintiff, instead of being discharged, was retained in the position which she continued to fill with ability, energy, and success until July 1, 1912, when Rice, the president, sold his interest in the business to his son and immediately thereafter, plaintiff and some other employes at Kansas City were summarily discharged.

The principal defense is that the contract, as contended for by plaintiff, falls within the statute of frauds (section 2783, R. S. 1909), and that the letter of recommendation Rice signed and sent to plaintiff on March 29, 1912, was not "such memorandum or note thereof" as to save the contract from the operation of the statute. The pertinent provision of the statute is that:

"No action shall be brought * * * to charge any person * * * upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized."

Clearly the contract upon which plaintiff founds her cause of action, when entered into, fell within the provisions of the statute since it was not to be fully performed within one year from that date, and was not reduced to writing, nor evidenced by any written note or memorandum...