181 Mo. App. 353 | Mo. Ct. App. | 1914
This is a suit to recover damages for the breach of a contract of employment. Plaintiff, a practicing lawyer in Kansas City, alleges in his petition that on March 22, 1911, the defendant Insurance Company entered into a contract with him by the terms of which it employed him “as its general counsel for the period of one year . . and agreed that in consideration of plaintiff performing the duties of general counsel and legal adviser for defendant for said périod the defendant would pay him for such services the sum of $1800” and “that on or about May 13,1911, defendant without just cause or excuse, wrongfully discharged plaintiff from its employment and wrongfully refused to allow plaintiff to continue to' perform his duties as general counsel as provided by said contract.” The petition admits payment of $275
It appears from the evidence that certain friends and clients of plaintiff obtained control of a majority of the capital stock of the defendant corporation, the headquarters of which were at St. Louis, and at a meeting of the board of directors regularly called 'and held on March 21,1911, changes were made in the personnel of the board and of the executive officers and it was decided to move the general office from St. Louis to Kansas Oity. Plaintiff was elected to fill a vacancy caused by the resignation of one of the directors and was also elected general counsel at a salary of $1800 per year. Other officers were elected at the same timo and the minutes show that they “were elected to serve during the ensuing year or until the next annual meeting of stockholders. ’ ’ These minutes were regular and were signed by the president and secretary. Plaintiff' entered upon the performance of the duties of general counsel and continued in the employment until May 13,1911, when the board of directors at a regular meeting passed a resolution that he “be and is hereby for good and sufficient cause removed as a director and general counsel of this company forthwith” and he was summarily dismissed from the employment. He and his associates had lost control of a majority of the stock, in a manner not now important, and were' displaced from the directorate and executive offices to give places to their successful antagonists. Though the-resolution recites that the discharge of plaintiff was. “for good and sufficient cause” there is evidence tending to show that the new directors were moved to such
Counsel for defendant argue that the demurrer to the evidence should have been sustained on the ground that the contract of employment, as shown by the minutes, was for an indefinite term and that defendant had the right to terminate it at will.
The rule is well settled that an indefinite hiring is a hiring at will and may be. terminated by either party at any time and if terminated by the employer no action will lie as for a wrongful discharge of the employee. [Brookfield v. Drury College, 139 Mo. App. l. c. 365, and cases cited.] A general hiring is presumed to be a hiring at will and if the employee sues to recover damages for a wrongful discharge the burden is on him to plead and prove that his hiring was for a definite time. [Finger v. Brewing Co., 13 Mo. App. 310.] The mere fact that the rate of compensation is agreed upon at a certain sum per month or per year alone would not suffice to establish the fact of a definite hiring for such period (Evans v. Railway, 24 Mo. App. 114) though it may be considered as of evi
There are essential differences between the facts of that case, which we think was correctly decided, and the facts of the case in hand. By entering upon the discharge of the duties of general counsel plaintiff accepted the terms of employment stated in the minute entries we have noted which, thereupon, constituted the contract of employment. The agreement that he should serve the defendant as general counsel for the ensuing year, or until the next annual meeting of the stockholders, at a salary of $1800' per year, clearly expressed the intention that the employment should not be at will, i. e., subject to be terminated at any time by either party, but was to be for a definite time. In no event was it intended that the employment should end before the arrival of the earlier of the two mentioned events. The time of the occurrence of each was definitely fixed and was known to both parties at the time of the hiring. The end of the calendar .year would
In answer to the argument that this was a hiring for the calendar year subject to the right reserved by the corporation to terminate it at the annual stockholders’ meeting, it is sufficient to say that the very existence of such right precludes the idea of a definite employment beyond the time fixed for its exercise.
The verdict and judgment were for the full amount of plaintiff’s demand which, as shown, is based on the erroneous idea that his definite employment was for the period of a calendar year. His contract being for a definite period which ended on the date fixed for the stockholders ’ meeting, the true measure of his damages does not include compensation for a longer time. The evidence of plaintiff reveals a cause of action but the judgment must be reversed and the cause remanded for the error just noted. We suggest to plaintiff the advisability of amending the petition to state a cause of action in conformity with the one we have found his evidence will sustain.
The judgment is reversed and the cause remanded.