70 Mo. App. 221 | Mo. Ct. App. | 1897
The court referred the case to a referee who made his report, finding that there were no profits made; that defendant had been paid his salary as agreed upon and recommended judgment for the amount of plaintiff’s claim. Defendant filed several- exceptions to the report which were overruled by the court and judgment given for the plaintiff. Defendant has brought the case here.
The controversy relates primarily to three items charged as expense against the profits of the business for the year 1894 which added to items of expense not disputed leaves the business without a profit. These items are eight per cent interest on the outstanding book accounts amounting to $2,800, insurance amounting to $250, and drayage amounting to $240. Disallowing these items of expense the profits were $3,205. Allowing them the loss was $85.
The answer, as before stated, alleges and sets out the written contracts made between the parties for the years 1893 and 1895, and further alleges that the contract of 1893 was adopted by the parties and continued as the contract for the year 1894.
The contract for 1893 provided that plaintiff would give to defendant in addition to his salary of $1,600, one third “of the net profits of the cigar department if there be any” after taking an inventory. Further on the.contract provided that in figuring the net profits, “eight per cent per annum on capital employed in carrying cigar stock be charged as expense to cigar department, the amount of the capital employed in carrying cigar stock to be reached by an inventory taken about July 1, 1893, and at the regular
The agreement of 1895, as set out in the answer, provided in figuring the net profit eight per cent interest should be charged on the capital employed in carrying the stock “and accounts” and be charged as expenses. It further provided in detail a plan of ascertaining the amount of accounts upon which interest was to be charged. This contract likewise especially provided for expense of ‘ ‘insurance at the rate of one per cent per annum for stock carried and shall pay $150 per annum for boxing and cartage.” It will be noticed that the contract of 1893 alleged to have been continued for the year 1894 did not provide for charging either of the three items of expense in dispute and that the contract of 1895 did provide for charging each of these three items.
The referee’s report is divided into paragraphs. He found that the defendant from January 1, 1893, to the fifteenth day of May, 1895, was engaged with the plaintiff “under the contracts set out in defendant’s answer.” (Italics ours.)
In the second and third paragraphs he found that there were no profits for the years 1893 and 1895. His fourth finding was as follows: “That for the year 1894 eight per cent interest on the net capital employed in the business amounted to the sum of $252; that this sum is made up of cigar stock in house only, $2,400, and interest on book accounts, $2,800. That during the said year the said business conducted under said contracts was at an expense of $240 for drayage and $250 for insurance, that charging said items of $2,800 on book accounts, $240 for drayage, and $250 for insurance, to
But since the referee also found that the parties put an interpretation on the contract as it related to charging interest, that interpretation being that the interest should be counted on -the accounts as well as on the stock, it may appear inconsistent that we should approve of the referee’s finding in the one instance and disapprove of it in the other. The difference in the two instances is this: In the case of charging insurance and drayage as expenses, the contract, as we have' just held, is a subject of doubt as to its meaning, and the interpretation of the parties solves such doubt. But as to the question of charging interest on accounts the contract as written is free from doubt, and an erroneous interpretation by the parties will not control its meaning. It is only in doubtful cases that the action of-the parties has that influence. Citizens Ins. Co. v. Doll, 35 Md. 107; Vinton v. Baldwin, 95 Ind. 436; Sedalia Brewing Co. v. Waterworks, supra; Gas Co. v. St. Louis, supra.
Under the conclusion of law at which we have arrived, and in the state of the record, we have no other alternative than to reverse the judgment and to remand the cause with directions that the referee’s report and finding as to the allowance of interest on accounts as matter of expense for the year 1894 be disapproved and that if the disallowance of such item leaves a profit for the year 1894 one third thereof be allowed defendant; that the difference between such one third of the profit and the sum due plaintiff is the true balance, and judgment be entered for such balance for the party_ in whose favor it may be.