Wripple v. Aaron.

• Decision Date: 03 October 1934
• Docket Number: No. 5389.,5389.
• Citation: 74 S.W.2d 1089
• Parties: J.W. WRIPPLE, RESPONDENT, v. EDWARD AARON, INCORPORATED, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

74 S.W.2d 1089

J.W. WRIPPLE, RESPONDENT, v. EDWARD AARON, INCORPORATED, A CORPORATION, APPELLANT.

No. 5389.

Springfield Court of Appeals. Missouri.

October 3, 1934.

Appeal from Circuit Court of Jasper County, Division 2. — Hon. Wilbur J. Owen, Judge.

AFFIRMED (on condition).

McReynolds & Flanigan and Winger, Reeder, Barker & Hazard, of Counsel, for appellant.

Howard Gray, Donald C. Cox and John C. Nipp for respondent.

ALLEN, P.J.

The first count of respondent's petition alleges that he was employed by appellant corporation, on the 10th day of February, 1927, as the manager of its poultry plant, at Lamar, Missouri, until January 1, 1928, for which services he was to be paid seventy-five dollars per week, and in addition to his salary he was to receive ten per cent of the net profits of the business at Lamar, which he alleged amounted in all to the sum of $13,000, so that there was due respondent, as his commission, the sum of $13,000 less the sums of $300 paid by appellant to respondent, on January 28, 1928, and $200 paid June 29, 1928, and asked judgment in the sum of $800, with interest at six per cent from December 31, 1927.

The second count alleges that on January 1, 1928, by agreement between the respondent and appellant, the oral contract between them was extended to include the year of 1928; that ten per cent of the net profits of the business at Lamar, for that year, amounted to the sum of $1,000 for which he asked judgment, with interest at six per cent, from December 31, 1928.

Appellant's answer was a general denial, and an allegation that the two sums of $300 and $200, each mentioned in the petition were merely loans from appellant to respondent, and filed counterclaim therefor, in this action.

Upon trial by a jury, the verdict was for respondent. On the first count of the petition, in the sum of $1794.70 and on the second count of the petition $1180.10, and for appellant, upon the first count of its counterclaim, in the sum of $393 and also for appellant, on the second count thereof, in the sum of $259.

Upon appellant's motion for a new trial, the court made the following order: "It appearing from the files and records herein that the judgment heretofore entered in this cause is excessive, in the sum of $322.80 and if a remittitur in that amount is made by plaintiff, the court will overrule the defendant's motion for a new trial." The respondent accepted the terms of the remittitur, which reduced the verdict of the jury to the sum of $2,000. Defendant refusing to accept the terms of the remittitur, prosecutes its appeal from the judgment thereon.

The oral evidence offered by respondent was the testimony of himself and wife. He said that for each of the years of 1927 and 1928, his contract of employment by appellant, was for a salary of $75 per week, and in addition thereto ten per cent of the "net profits" for each of the two years' business at Lamar.

The testimony of Edward Aaron contradicted the claim of respondent, that he was to receive the commission of ten per cent of the "net profits," but the finding of the jury upon that issue is conclusive upon this court.

Therefore, in our opinion, there is but one question for our consideration in this case, to-wit: That of the profits of the business of appellant, if any, at Lamar, during the two years of 1927 and 1928. Respondent's testimony as to his service and duties was not disputed. He supervised the buying and shipping of eggs and poultry, packing eggs and feeding and dressing poultry for shipment; kept a monthly record of all labor and other expense, in the operation of the business at Lamar; sent daily reports thereof to the main office of the company, at Kansas City, and at the end of each month sent a monthly inventory to the home office, receiving in return from the main office within a week or ten days, statements showing the net results for the preceding month. Depreciation was computed for the year's period.

Respondent, in defining the meaning in trade, of the term "net profit," as used in his contract with appellant, said he understood the term to mean "the absolute net of the year's business." That is the net profit at the end of each month and at the end of the year a total net profit; that the net profit meant the gross profit less the operating expenses. That as manager, he had entire charge of the plant and the business transacted there. That appellant owned the building and equipment at Lamar, and that the depreciation of the building was included in the meaning of that term as used in the yearly business report.

Mrs. Whipple, the wife of respondent, who prepared the reports that were sent from the Lamar plant to the main office at Kansas City and to which were added by that office such items of expense as insurance, attorney's fees, interest and depreciation, which items were generally figured in Kansas City. That the sales were usually handled from Kansas City, where they had the information of the various items of expense last mentioned. That the statements received at the Lamar plant from the Kansas City office were destroyed by fire, prior to the trial of this case in the circuit court, from which fact it was evident that the testimony of both Mr. and Mrs. Whipple was largely dependent upon memory, which necessarily included a great number of complicated items, making up the business of appellant, at Lamar, and included in the monthly and annual reports.

Mrs. Pearl Strauss, the secretary of appellant company, at its general office in Kansas City, who as such had charge of the accounts of appellant, together with that of respondent, including the ledger sheets, showing the results of the business of the plant at Lamar, during the years of 1927 and 1928, identified the profit and loss ledger statements for the two years mentioned, which...