Wood v. James B. Nutter & Co.
Decision Date | 10 July 1967 |
Docket Number | No. 52407,No. 2,52407,2 |
Court | Missouri Supreme Court |
Parties | Charles H. WOOD, Appellant, v. JAMES B. NUTTER & COMPANY, a Corporation, Respondent |
John J. Alder, Alder, Morrison & Rixner, Kansas City, for appellant.
Frank P. Sebree, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondent.
This is an appeal by plaintiff Charles H. Wood from a summary judgment entered on his cause of action which is based upon breach of an alleged oral employment contract.
The record on appeal consists of pleadings, interrogatories, depositions, exhibits, and affidavits. Plaintiff contends the trial court erred in entering summary judgment because substantial, material issues of fact remain in the case and defendant is not shown 'by unassailable proof to be entitled thereto as a matter of law.' S.Ct. Rule 74.04(h), V.A.M.R.; Maddock v. Lewis, Mo.Sup., 386 S.W.2d 406, 408--409(1). We 'view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered.' Cooper v. Finke, Mo.Sup., 376 S.W.2d 225, 228(2).
According to plaintiff's evidence: Plaintiff is an accountant specializing in mortgage servicing and accounting. Defendant is a mortgage loan broker. In December, 1960, plaintiff discussed employment with two officers of defendant. They entered into an oral employment agreement whereby plaintiff agreed to install his systems of mortgage servicing and accounting and defendant agreed to pay him $600 per month plus 'one-third of the net profit of James B. Nutter and Company, derived from its servicing operation.'
Defendant describes its whole operation as follows:
'The servicing of a loan includes the collection of the proceeds of a loan, the remitting of the proceeds of the loan to the investor who owns it, the taking of steps to protect the loan and the real estate that secures it, the collection and escrow of money for taxes and insurance, and the paying of the taxes and insurance premiums on real estate as they come due.'
Plaintiff started to work December 7, 1960, and shortly thereafter became Treasurer of the company. He terminated his employment January 8, 1965. He filed suit March 19, 1965.
Defendant first contends the trial court properly entered summary judgment 'because the oral agreement which plaintiff claims to have entered into with defendant is too vague, indefinite and uncertain to be enforced.' Plaintiff testified in his deposition that when the oral agreement was made he and defendant's officers did not discuss 'how the question of servicing profit was going to be arrived at.' He also made several admissions indicating an inability to calculate net profits from defendant's servicing operation. According to the employment agreement, plaintiff was to be paid one-third of the net profit derived from the servicing operation, which is but one of four sources of defendant's income. Plaintiff's problem arose when he was asked to allocate defendant's expenses between the servicing operation and the other three operations of the company in order to determine the net profit of the servicing operation. His problem became more pronounced when, on January 25, 1966, defendant filed a motion to stay all discovery on the part of plaintiff and the motion was, on February 9, 1966, sustained by the trial court. (See S.Ct. Rule 58.01, V.A.M.R.)
On May 26, 1966, defendant filed its Motion for Summary Judgment with supporting affidavits. Thereafter, plaintiff filed his suggestions in opposition. Attached thereto is an affidavit, personally sworn to by plaintiff, in which he makes the following statements:
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