Conklin v. John H. Woodbury Dermatological Institute

McLAUGHLIN, J.

On the 12th of December, 1894, Dr. John Wherly, the plaintiff’s assignor, entered into a contract with the defendant, which, among other things, provided that it should open an office in the city of St. Louis, Mo., of which he should take charge. The contract further provided that Dr. Wherly should devote his whole time and attention to the business connected with the office, during certain hours specified, and at such other times as, in his opinion, should be necessary, and for such services he should receive, for the first year, 50 per cent, of the net profits of the business,— the defendant guarantying that such profits should not be less than $1,500. The contract also provided that, if the defendant "desired to dispense with the services of the party of the second part [Dr. Wherly] without assigning good reasons therefor, it shall, in that event, repay unto the party of the second part the sum of $1,000; but, should the party of. the first part be compelled to dispense with the services of the party of the second part because of his failure to keep the terms of this agreement, that then, and in that event, the party of the first part shall not be required to pay unto the party of the second part any sum whatever.” Dr. Wherly performed the services required.of him for the first year, and received the $1,500 stipulated in the contract. The plaintiff alleges in his complaint that at or shortly after the beginning of the second year Dr. Wherly was discharged, notwithstanding the fact that he had performed all of the terms of the contract on his part to be performed. This action was brought to recover from the defendant the $1,000 specified in the clause of the contract above quoted. The defendant, in answer to the allegations of the complaint, alleged that Dr. Wherly did not perform the contract on his part to be performed, and-especially in that he failed to devote his whole time to the business; that he failed to keep proper books of account; and that he devoted much of his time to the advancement of his own private affairs, without the knowledge or consent of the defendant, and to the injury of the defendant’s business. The answer also alleged that Dr. Wherly left the employ of the defendant, and refused to return thereto, unless a different contract was made. Upon the issue thus formed the parties went to trial, and the evidence on the part of the plaintiff tended to show that Dr. Wherly performed all of the terms of the contract on his part to be performed until February 11, 1896, when he was summarily discharged by the president of the defendant, and ejected from the office of which he had been placed in charge. Dr. IWierly testified, as a witness on behalf of the plaintiff, that the president of the defendant met him on the 11th of February, 1896, at the office of the defendant in St. Louis, and then informed him that, inasmuch as the office had not paid, the company proposed to discontinue it; that they would like to have him come to New York, and, if he would consent to do so, they would pay him a certain stated salary; that, after taking .the matter under consideration, he informed the president that he would not go to New York, in response to which the president said: “I discharge you. I have no further use for you to work for me.” Dr. Wherly was corroborated in some respects by the witness Acken, who, at the time, had the management of a branch of the defendant’s business. He testified that the president of the defendant told him at about this time that he had better close “the ■St. Louis office, as it did not pay.” The witness G-logau further corroborated the plaintiff. He testified that he had charge of the building in which the defendant had its office in St. Louis,' and that the president of the defendant informed him that he wanted to break his contract with Dr. Wherly and that the only way he could do so was to move the furniture which the defendant had in the office, occupied by it in St. Louis, and thereby make it appear that it had given up its business in that city.

The testimony on the part of the defendant consisted substantially of that given by Dr. Woodbury. He, in effect, testified that Dr. Wherly called him a liar and that he replied, “If you call me a liar, I will throw you out of the office,” and that thereupon Dr. Wherly walked out of the office. According to the testimony of this witness, the defendant was further justified in refusing to retain Dr. Wherly in its employment, on account of the manufacture and sale by him of a certain medicine called “Lepidus.” The record before us, however, fails to disclose that Dr. Wherly did anything with the medicine called Lepidus which was inconsistent with the contract which he entered into with the defendant. It is true that he had on hand at the time he made this contract a quantity of this medicine, and that he thereafter took the same or some of it from the place of business occupied by him prior to his entering into the contract with the defendant, to a store in St. Louis, where he placed it on sale, and that he also advertised the same for sale in a theater pro-gramme for one .week. But it appeared that long prior to the time of the transaction of the contract he made a full explanation of what he had done to the defendant, and that its president signified that he was satisfied with, the explanation, and also with what had been done. It also appeared that none of the medicine had been sold intermediate the making of the contract with the defendant and Dr. Wherly’s discharge. The question, therefore, as to whether the plaintiff’s assignor was discharged by the defendant without its assigning good reasons therefor, as specified in the contract, was a question for the jury to determine; and, it having determined that question in favor of the plaintiff, and there being evidence to sustain its finding, this court ought not and cannot interfere.

It follows, therefore, that the judgment and order should be affirmed, with costs. All concur.