Bradner v. Rockdale Powder Co. , 115 Mo. App. 102 ( 1905 )

GOODE, J.

(after stating the facts). — No defense was shown to plaintiff’s canse of action arising from the breach of the contract of April 12, 1904. The defendant kept plaintiff waiting until June 15th for the erection of the magazine and the commencement of business under the contract, and then informed him that the directors had decided to put his employment on a commission basis; that is, in effect, had decided to repudiate the contract. Why this was done the evidence fails to disclose; but probably it was because defendant had made other business arrangements, or found its finances in such a condition that its officers thought its interests would not be promoted by paying plaintiff a salary, as it had agreed to do. Plaintiff had been ready to enter on the performance of his duties at any time. After he was notified of the decision of the directors he made diligent efforts to secure employment. At first he applied to various concerns engaged in the powder business, with which he was familiar; and on failing to get work from them, applied to companies engaged in other lines of business. His efforts to find employment, proved futile. , There being nothing to show plaintiff’s loss because of defendant’s breach was less than he would have received had the contract been performed, the measure of his damages was the salary for the period of his employment under the contract, that is, one year, less such sums as the jury might find from the evidence plaintiff by reasonable diligence, would be able to earn during the remainder of the year of his employment. [Boland v. Quarry Co., 127 Mo. 520, 30 S. W. 151.] The jury Avas instructed in accordance with this rule and returned a verdict for the amount of his salary for a year from June 15, 1904. Defendant insists that, according to the contract, his salary was to begin on the date of the contract, that is, April 12,1904; whereas the plaintiff insists that it was to begin when the magazine Avas erected. No doubt the latter position is correct; for the contract said in plain words that payment to plaintiff should commence when a suitable site was procured and tbe magazine erected. How could business begin under tbe contract until tbe very means, and essential condition, of carrying it on had been provided? Now the point about when plaintiff’s salary began is material to the action on the first count in some respects. The amount to be allowed as damages was to be reduced by subtracting whatever the jury believed plaintiff, by diligence, might have earned, during the year of his salaried employment. If the year began April 12th, they might have found differently on that inquiry'; and, moreover, his work of selecting a site would be covered by his salary, as it would not be if his salary began June 15th. Again, if it was an open question for the jury to say when it began and they were bound to decide on neither April 12th nor June 15th, but might fix such date as afforded defendant a reasonable time to build a magazine, both their finding on the issue of whether plaintiff could have procured employment elsewhere for part of his salaried year, and their finding on his right to pay for choosing a magazine site, would hinge on the date found to be the end of a reasonable time for the erection of the magazine; for, by the contract, the salary would begin on said date. Did the court do right in making the salaried year begin June 15th, instead of leaving it to the jury to say when in reason, the magazine should have been ready, and making the salary begin then? As no period was fixed for the building of the magazine and the opening of business', the law will hold that a reasonable time was intended. [Randolph v. Frick, 57 Mo. App. 400.] In further refutation of the argument that the salary was to begin on the date of the contract, we remark that the parties did not so construe it. Plaintiff was paid no salary from April 12 when the contract was made, until June 15, when it was repudiated, though the instrument provided for monthly payments; and meanwhile he was paid commissions — and by accepting them conceded, in effect, that his first contract was still in force. Moreover, the ■ correspondence shows Bradner tried to hurry performance by defendant in order to have his salary begin, and that, as the matter was delayed, Bradner telegraphed defendant on May 2d, asking if defendant would start the salary from the date of the contract and allow him fifty dollars for expenses. The contract provided that he should receive his traveling expenses. Defendant promised to answer this message when its president returned; but did not answer it. We have no doubt that the employment of plaintiff under the instrument of April 12th did not begin on that date, and none that it was to begin in a reasonable time thereafter— a time reasonable for the selection of a magazine site and the erection of the building. What was a reasonable interval in which to do those things, would have been a question to propound to the jury but for the conduct of the parties. The correspondence between them to June 15th shows that the plaintiff insisted defendant had broken the contract by failing to act more promptly. That is, did not insist that a reasonable time for performance by defendant had already lapsed. He was urgent that performance begin, but was patient, too; and neither asserted a breach by defendant, nor appears to have suspected its good faith. In view of these facts the plaintiff had no cause of action on the theory that a breach occurred prior to June 15th, when defendant repudiated the employment. Until that date defendant itself professed an intention to go forward Avith the contract and induced plaintiff to believe it would; meanwhile accepting business from him under the existing commission contract and paying him the commission earned by the business, thus showing it considered the new contract not to be in operation. It, therefore, conclusively appears that to June 15th both parties treated the commission contract as in force and the neAV one as in abeyance. In vícav of the conduct of the parties themselves, we hold that in this action for breach of the contract for salaried service, the salary was rightly treated as beginning at the date of defendant’s repudiation of the agreement. If this ruling is correct there can be no question that the verdict on the first count was for the right party and for the right amount; so it is needless to enter on a discussion regarding the propriety of the instructions given on that count.

Treating plaintiff’s salary as running one year from June 15, 1904, when the defendant repudiated the contract, instead of one year from April 12, 1904, the date of the contract, might bear on his recovery on the second count, wherein he asked judgment for the reasonable value of work performed in selecting a site for the proposed magazine. The position taken by the defendant is that plaintiff’s employment began on April 12th and, hence his services in selecting the site, as they were rendered between April 12th and June 15th, were covered by the monthly salary accruing to him under the contract. In other words, that he was acting under his contract in selecting the site as much as he would have been in selling powder after the magazine was built. It is to be remembered that the plaintiff was already working for the defendant under a contract made in December, 1903, and that this employment went on after the written contract of April 12, 1904, was made. Plaintiff still continued to sell powder on commission for the defendant, awaiting the erection of the magazine and the commencement of his salary. The evidence shows that he made one considerable sale in the interval; a sale of some two thousand dollars worth of powder to the Mine La Motte Company. It is palpable that the written contract meant that plaintiff’s salaried employment was to begin when a magazine was erected and a new business started. No time was specified for the erection of the magazine and, therefore, as said, the law will presume it was to be erected in a reasonable time. Now the selection of a site was a work wholly independent of plaintiff’s duty to sell on commission under the contract he was already operating under, the December contract. It was an independent service which, as it occupied him for three weeks, probably interfered with his sales and diminished his commissions. The entire evidence, both his own testimony and the correspondence, goes to show he was expected by the defendant to select a site. Whether he was to do it gratuitously, for the purpose of expediting the commencement of his salary, or for pay, was a fact to be found by the jury and was left to their decision. There was evidence justifying the verdict that he did the work in expectation of payment and that the defendant expected to pay for it. It was proper to remit the question to the jury and on the appeal the point of moment is the soundness of the trial court’s rulings on the instructions requested. Those requested by the defendant were so numerous and many of them so superfluous, that the court would have been justified in refusing them all. We have said that because the verdict on the first count was plainly right it is unnecessary to examine the instructions with a view to determine whether the issues on that count were properly submitted. This is true, too, for another reason, in respect of the finding on the second count. No proof was adduced to show the reasonable value of the services plaintiff rendered in selecting the site and, therefore, the verdict on the second count cannot stand. The lack of evidence is practically conceded by plaintiff’s counsel; but they insist that the value of the service came within the common knowledge of ordinary men and the jury might settle it without evidence to aid them. In support of this position we are cited to the decision in Sayers v. Graven, 107 Mo. App. 407, 81 S. W. 473. That decision rests on the decision of the Supreme Court in Murray v. Railroad, 101 Mo. 236, 13 S. W. 817, in which it was ruled that, without testimony, a jury might fix the reasonable value of the services of a nurse. But the latter case was overruled as to the particular point in Cobb v. Railroad, 149 Mo. 609, 630, 50 S. W. 894. In onr opinion the reasonable value of such, services as plaintiff rendered is not a matter of such common knowledge that testimony on the subject may be dispensed with. It was very easy to procure testimony on the point and some ought to have been introduced. The very essence of a case quantum meruit is the reasonable value of the work or property in dispute; and Avhen the case is such that the inquiry as to the value is susceptible of proof by testimony, proof must be made. [Mabrey v. Gravel Road Co., 92 Mo. App. 596.]

The judgment is reversed and the cause remanded, with directions to alloAV the verdict to stand on the first count; to retry the issues on the second count and after verdict thereon, to enter judgment on both counts in accordance with the findings.

All concur.