Waller v. Tootle-Campbell Dry Goods Co.

• Decision Date: 01 May 1933
• Docket Number: 17489
• Citation: 59 S.W.2d 751
• Parties: T. J. Waller, Respondent, v. Tootle-Campbell Dry Goods Company, Appellant
• Court: Kansas Court of Appeals

59 S.W.2d 751

T. J. Waller, Respondent, v. Tootle-Campbell Dry Goods Company, Appellant

No. 17489

Court of Appeals of Missouri, Kansas City

May 1, 1933

Argued May 1, 1933

Appeal from Buchanan Circuit Court.

OPINION

Francis H. Trimble, Judge.

This action is to recover damages for the alleged breach of a contract of employment of the plaintiff as a traveling salesman on a commission basis for the year 1930. The defendant, with its principal place of business in St Joseph, has for a number of years prior to January, 1930 conducted a general wholesale and jobbing business, and has done so continuously since that time. Prior to the date mentioned, plaintiff was in defendant's employ from month to month as a traveling salesman, assigned to territory in the state of Nebraska, on a salary of $ 175 per month and bonus, or commission, basis; but plaintiff alleged that in the last few days of December, 1929, defendant placed plaintiff on a straight six per cent commission basis, and made a contract with him for a period of one year beginning January 1, 1930, said compensation to be paid monthly.

After alleging the above facts, the petition states that plaintiff accepted the said agreement or contract and worked thereunder from January 1, 1930, to March 7th, 1930, on which last named date he received notice of discharge and was required to send in his samples, leaving him without a position and without opportunity of securing another as all such are filled about the 1st of January; that plain tiff made effort to secure a position where he could earn a salary similar to that he was earning with the defendant but was unable to do so; that under yearly contract beginning January 1, 1930, he would and could have earned at least $ 5000, but as the defendant willfully and wantonly breached its contract and discharged plaintiff, whereby he has been thrown out of a position, he has suffered a loss of $ 5000 for which he asked judgment.

The answer, after admitting the corporate capacity and business of the defendant and that "plaintiff was formerly employed by it", denied generally every other allegation.

After a trial on the 28th of November, 1930, at the October term of the Buchanan County circuit court, the jury found for plaintiff and returned a verdict assessing his damages at $ 1750. Defendant duly appealed.

During the years of plaintiff's employment with defendant prior to 1930, he received a salary of $ 175 per month and his traveling expenses, which last averaged $ 200 per month, his employment being by the month.

On December 26, 1929, defendant wrote a letter to plaintiff which, omitting the date and address, is as follows:

"Dear Mr. Waller:

"For some time I have been considering the best method of compensating our salesmen, as the present day condition make it absolutely necessary for us to know definitely Just what the percentage selling cost of our merchandise must be.

"To meet this condition and obtain the best results for all concerned, I am convinced we will have to place our salesmen, on territories where the per cent of expense has been out of line with what we can afford to pay for selling merchandise, on a commission basis of 5%. (This will be 6% in your case instead of 5%), payable monthly, out of which they are to pay their own expenses. Where special salesmen's help is furnished, we pay the salary of such special salesman and the territory receiving the benefit of his services paying the traveling expenses, the general man receiving full commission on all merchandise shipped.

"Commencing on January 1st, 1930, we shall inaugurate this method of compensating you, as by so doing we will know the definite percentage cost of selling expense so necessary under the present day conditions.

"We feel that this method will not be a hardship on any salesmen and it should work to his advantage where the volume on the territory is kept up to normal basis or a basis that would show any profit to the house, and where the normal basis is exceeded, as will be easily possible on your territory, it would increase your compensation.

"Another feature that it will eliminate will be possible questions regarding matters of items in expense accounts which sometimes arise.

"We shall continue our constructive policy to do everything we can to assist our customers with advertising and such dealer helps as we can furnish, believing such efforts are very beneficial to our customers and a distinct aid to our salesmen.

"May I request a receipt of this advice that I may know that you fully understand it.

"Assuring you of my kindest personal regards, and trusting you will have a year that will be profitable to you in every way, I am (Italics ours.)

"Very truly yours,

MILTON TOOTLE, Jr.,

President."

The above letter was mailed to plaintiff's address in Lincoln. Nebraska, but the plaintiff's evidence is that "right close to the 1st of January of 1930" he was in St. Joseph, and while at defendant's place of business "during the Holidays" the President of the Company asked him into his office. At that time plaintiff had not received the above letter and did not know that there was any thought or intention on the part of defendant to change his contract of employment. Plaintiff says this visit to the President's office at the letter's request was "between the 26th and the last day of December. I do not know just exactly the date" but it was before the first day of January, 1930.

Concerning what was said in this office-interview between plaintiff and the President of defendant Company, plaintiff's counsel asked the latter "what did he (the president) say to you about your future employment with the Tootle-Campbell Dry Goods Company?" To this defendant made objection to it "as not being competent, as tending to show a contract by its terms not to be performed within a year."

The objection was overruled, defendant excepting. Plaintiff then testified that the President told him, "they (the Defendant Company) had seen fit to change the terms of employment from a salary basis to a commission basis"; that his (plaintiff's) commission would be six per bent; that the President told plaintiff he had written him a letter. Plaintiff had not received any letter and told the president he had not. The president thereupon took from his desk a copy of the letter and asked plaintiff to "sit down and thoroughly read it". Plaintiff testified that he did so and that afterwards while he was in St. Joseph during the holidays, the original letter, of which the one handed to him by the president was a copy, was "transferred back here" (St. Joseph).

Plaintiff was then again asked to tell the conversation the two had "relative to your future employment" and again defendant made the same objection and it was again overruled, the defendant excepting.

Plaintiff then testified that the president told him he (the president) was making the change "on account of the expense, so he would know more definitely what the expense on the territory would be, in regard to sales." After this, plaintiff testified, over the objections and exceptions of defendant, that Mr. Tootle asked him what he thought he "could sell this year" and plaintiff replied there was no question but that he could sell seventy-five thousand dollars' worth. To which Tootle replied. "There isn't any question but what you can sell one hundred thousand dollars under the conditions." After detailing certain conversation between them as to conditions in the territory, all of which, including what follows, was over the objections and exceptions of defendant, plaintiff was asked by his counsel -

"Q. After that conversation, what was said by you first regarding your taking up the employment on the six per cent commission basis in the Lincoln territory?

"A. That I would take it for a year.

"Q. At what commission? A. I assumed all of my own expenses.

"Q. What did Mr. Tootle say when you made that statement to him. A. He said "Alright".

* * *

"Q. Recite the conversation about your employment, what you said to Mr. Tootle about your employment and what Mr. Tootle said to you.

"A. I told him I would take it for a year.

"Q. What did he say? A. He said 'Alright'.

"Q. Was there anything said about the year's commencing at a certain time, and if so, what?

"A. January 1.

"Q. Was there anything further said between you and Mr. Tootle at that time about your contract?

"A. No. sir."

Plaintiff then testified that he entered upon his work on January 1, and continued therein until March 7th. There was further evidence to support the other allegations of the petition.

At the close of plaintiff's case the defendant demurred, but as defendant offered evidence after it was overruled, this demurrer was waived.

Defendant's evidence admits the writing of the letter, the meeting in the president's office, and the general trend of the conversation had between Tootle and plaintiff, save and except that Tootle testified there was nothing said about the time the contract was to continue, but that plaintiff merely said he was willing to try it out. There was no denial that the phrases in the letter of December 26, 1929, "Your territory" and ...