Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
Action by Otto B. Weik against the Williamson-Gunning Advertising Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Plaintiff, for cause of action, states that on the 15th day of September, 1902, he entered into a written contract with the defendant, signed by its president, R. J. Gunning, which contract is in words and figures as follows, to wit:
"St. Louis, Mo., Sept. 15th, 1902. Mr. O. B. Weik, St. Louis, Mo. — Dear Sir: We will
make the following arrangements for your services commencing with this day:
"Your entire time and energy are to be devoted to the interests of our Company; you are to act as a solicitor here in the city of St. Louis, or outside, should we deem it necessary to send you to other cities. The period of your employment is to be for the term of six months from and after the date above written.
"We will pay you a salary of $25 per week, payable weekly, and will also pay your necessary incidental expenses which are not to amount to more than $5 in any one week. Your expense account is to be rendered us at the end of each week, carefully itemized, and we are to pass upon the necessity of any particular expenditure. Expenses in excess of that figure will be paid by us if we deem the necessity of same of sufficient importance.
"We will also pay you a commission at the rate of five per cent. on all business turned in by you, not to exceed five thousand ($5000) dollars, from any firm or individual in one order. Should the total amount of business received from any one firm or individual within that time exceed five thousand ($5000) dollars, whether or not a commission is to be paid you on same, is entirely optional with Mr. Gunning; it of course is understood that the commission is figured on the amount of our collections, and not on the face value of the order.
"We also agree to allow you, while traveling in behalf of our interests, transportation and expenses not to exceed $5 per day; expenses in excess of that figure will be allowed by us if we consider the necessity of same of sufficient importance.
"It is understood that the compensation, including salary and commission, shall equal the amount of fifty ($50) dollars per week, settlement on this basis, to be made at the expiration of each three (3) months from date hereof.
"You are to at once file a list of the St. Louis concerns with whom you desire to work, which is to be approved by us. Any additions to this list should also be submitted to us and passed on before being included among the firms upon which you are working. Should your efforts on any firm or individual not produce satisfactory results to us within thirty (30) days, we reserve the right to place another solicitor on that firm.
"Of course it is distinctly understood that expenses are to be kept down to the lowest possible limit at all times, and that expense accounts are to be rendered at the end of each week without fail, and expenses are not to be lumped, but minutely itemized and vouchers are to be attached wherever it is possible, so that everything can be audited intelligently in the office.
"You will be expected to report at the office not later than 8:30 in the morning, and if you do not expect to report personally at the office two or three times during the day it will be necessary to call up the office by telephone between 12 and 1:30 p. m. — always reporting at the office in person at the end of the day. If you find this impossible, however, please report by telephone towards evening. We make this request for the reason that we want you to keep in close touch with the office so that if anything comes up during the day, which we desire to turn over to you for attention, we can do so with as little delay as possible. You will be furnished with daily instructions from the office to which you will give your best attention, and report results at the close of each day.
"R. J. Gunning, Prest
"Accepted. O. B. Weik."
The petition continues as follows: "The plaintiff says that, by the terms of said contract, plaintiff, in consideration of the agreements and undertakings therein on the part of the defendant to be done and performed, agreed to render his services to the defendant as an advertising solicitor, and solicit advertisements for defendant in the city of St. Louis, or outside, for a period of six months from the date of said contract, and that plaintiff was to receive as his compensation the sum of fifty dollars per week, twenty-five dollars of which was to be paid weekly, and the remainder at the end of every three months after the date of said contract, and, in addition to said compensation, plaintiff was to receive certain expense money and commissions specified in said contract. Plaintiff says that immediately after making said contract, and on the same date, he entered upon the performance of his duties under said contract, and performed same until November 24, 1902. Plaintiff says that defendant paid plaintiff one-half of the compensation provided by said contract for the said ten weeks of plaintiff's services, or until November 24, 1902, and that the total amount of compensation received by plaintiff from the defendant under said contract for services rendered was the sum of $250. Plaintiff says that defendant is still indebted to plaintiff for one-half of his compensation for the said ten weeks of services rendered defendant from September 15, 1902, to November 24, 1902, or in the sum of $250, for which sum plaintiff prays judgment. And for a further cause of action against the defendant, plaintiff says that on November 24, 1902, the defendant, without reason or provocation, discharged plaintiff from its service, and refused to allow any further performance of his contract; that plaintiff at all times thereafter was ready and willing to perform his undertaking and render his services to the defendant, and he frequently tendered his services to the defendant, but the defendant always refused to accept them. Plaintiff says that, on account of defendant refusing to allow plaintiff to perform his contract and on account of defendant's breach of contract as aforesaid, plaintiff has been damaged in the sum of $800, for which further sum
plaintiff prays judgment. Wherefore plaintiff prays judgment against the defendant in the total sum of $1,050, and for his costs of suit."
The answer, omitting caption, is as follows: "Defendant, for answer to the matters and things set forth in the petition of plaintiff, admits that it is, and was at all times mentioned therein, a corporation organized, existing, and doing business under and by virtue of the laws of the state of Missouri, and during all of said times conducting a display advertising business by means of billboards and signs placed at conspicuous points in the city of St. Louis, Missouri. Denies each and every other allegation in said petition contained not hereinafter specifically admitted. Further answering, defendant alleges and charges the fact to be that the plaintiff, in order to induce the defendant to execute the written contract set forth in his petition, fraudulently and with intent to deceive defendant for such purpose stated and represented that he had a large amount of advertising business of the character done by defendant, ready to turn over and which he would turn over to it, and a large number of orders for advertising of such character from East St. Louis merchants; that he had a large amount of business of such character amongst persons who had been placing advertising in street cars of the city of St. Louis, and that a large number of such persons were his customers; and that he could and would control such business and turn it over to defendant. That the defendant relied upon the statements aforesaid of the plaintiff, and believed them to be true, and, so relying upon their truth, was induced thereby to execute said contract, which, had it been advised of the fact concerning such statements, or either of them, as hereinafter stated, it would not have done. That the statements and representations of plaintiff aforesaid were untrue, in this, viz.: The plaintiff did not have a large amount of business ready to turn over to defendant, nor any business at all, nor did he procure and turn...
