Weik v. Williamson-Gunning Advertising Co. , 109 Mo. App. 6 ( 1904 )

BLAND, P. J.

(after stating the facts). — 1. Two ■questions are presented for solution by the record in the case: First, whether or not there is any substantial ■evidence tending to prove the allegations of fraud set up as. a defense in the answer; second, under the terms of the contract, was the plaintiff, irrespective pf the amount of business he might bring to the defendant, entitled to a salary of fifty dollars per week or twenty-five dollars per week certain, the fifty dollars per week, mentioned in the contract, being contingent on the amount of business plaintiff might be able to secure for the defendant? In respect to the first question, in explanation of the situation, it is well enough to state that Gunning and plaintiff were, strangers to each other, having never met prior to the beginning of negotiations for the contract. Gunning was just starting a branch of the defendant’s business in the city of St. Louis and was anxious to employ an experienced energetic' agent to solicit advertising. The plaintiff, from the evidence, appears to he such an agent, and Gunning stated that he impressed him as being the kind of man he wanted, and that he formed this opinion mostly but not entirely from conversations with the plaintiff. It is also shown by the testimony that plaintiff had been successful as an agent in soliciting advertising for other concerns and had recounted his successes to Gunning pending the negotiations for the contract, and Gunning testified that he depended and relied entirely on the representations and statements made to him by the plaintiff and hired him. Gunning nowhere testified that plaintiff promised or agreed to divert the advertising of his former St. Louis and East St. Louis'customers to defendant if he should be employed; what he said to Gunning, according to Gunning’s statements, was that he could do it, not that he would do it. This was not a promise. It was nothing more than an expression of opinion by plaintiff of his ability to divert this advertising. ‘ ‘ Fraudulent representations in order to afford ground for relief, must be of facts which then existed or had existed in distinction from an opinion, a promise or an assumed future fact." Wade v. Ringo, 122 Mo. l. c. 326, 25 S. W. 901; McFarland v. Railway, 125 Mo. 253, 28 S. W. 590. The law recognizes the well-known fact that men, in the making of bargains and contracts with other men, “depend upon their own judgment and opinion instead of those whose self-interest is against them.” Chase v. Rusk, 90 Mo. App. l. c. 29. Representations made during negotiations for a contract, which show on their face that they were not intended as statements of facts but as expressions of opinion or expectations as to future occurrences, do not amount to proof of fraud. McFarland v. Railway, supra. Gunning’s evidence, under the most favorable construction, shows that the statements and representations of plaintiff in respect to procuring St. Louis and East St. Louis parties to transfer their advertising to billboards, was but the expression of expectation of what he thought he would be able to do in the future and did not amount to proof of fraud, and we think the learned trial court did not err in withdrawing the defense of fraud from the consideration of the jury as there was no substantial evidence to support that defense.

2. The contract contains two clauses in respect to plaintiff’s salary. By the first one defendant agreed to pay plaintiff a weekly salary of twenty-five dollars, payable weekly; by the second it was agreed that the plaintiff’s compensation, including salary ($25 per week) and commission, should equal fifty dollars per week, and that a settlement on this basis should be made at the expiration of each three months. These two clauses are easily reconcilable by referring back to the clause in the contract which provides that defendant will pay plaintiff, in addition to the salary of twenty-five dollars per week, a commission of five per cent on all business turned in by him not to exceed five thousand dollars from any one firm or individual in one order. It was expected that the commission and salary of twenty-five dollars per week would equal or exceed fifty dollars per week, but if it did not the contract provides that plaintiff’s compensation shall not be less than fifty dollars per week and that a settlement on this basis shall be made at the end of each three months. We think it is clear that the minimum compensation for plaintiff’s services under the contract was fifty dollars per week.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.