115 Mo. App. 102 | Mo. Ct. App. | 1905
(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
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
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.