*1 1167: admitting court erred complain that the X. Defendants further constructed, as well testimony buildings well were not photographs, thereof, cost construction as Tarioi;is building- City Kansas provisions of the buildings. This evidence was testimony as to the life of the code value actual market competent, material as to the relevant and exchange contract, buildings at the time of the execution kind by the least, was value, their market extent at evaluated to some construction. and condition of their complaints relative unnecessary
XI. It to discuss defendants’ plaintiff’s and the excessive- argument of counsel again questions may not verdict, as the same ness arise. Cooley and and the cause remanded. reversed concur. CC.,
Westimes, adopted C., foregoing opinion Davis, PER CURIAM: —The judges concur. All of opinion of the court. as the Poultry Supply Com Appellant, v. Ozark T. Fullington, Marion pany. (2d) 39 S. W. One, 5, 1931. June Division *2 Dickey Haymes appellant. &
Page, Barrett <&Barrett for respondent. FITZSIMMONS, Appellant (plaintiff) (de- respondent sued C.—
fendant) County the Circuit Court of September Greene Term, Upon respondent’s changed application the venue was County. Appellant’s Webster inwas three counts. The counts, and third which contest, second did not were money respective advanced in the of $100 $17.50. sums Respondent filed a appellant’s peti- demurrer the first count of upon ground tion that it failed to of action. state cause sustained, refusing plead further, demurrer was against was rendered the first count. Motions trial ap- a new arrest were overruled pellant granted appeal Springfield Appeals. Court The latter court transferred the cause court for the reason *4 $8,100, together that The amount for in first count sued was with damages petition interest. The count of the is for first breach employment appellant by .respondent. of contract of of The contract writing. large It is set out at and as fol- is lows: “ AND AGREEMENT 26th ‘THIS CONTRACT entered into this Poultry Ozark. day November, 1924, Supply of between The Com- (a corporation of Mis- pany chartered under laws the State of party Marion T. souri), party part, Fullington, of the first and part, the second “ ‘WITNESSETH:
“ moneys paid corpora- ‘That in consideration of into aforesaid T. for stock in and service to be said Marion tion same rendered agrees corporation hereby place Fullington, aforesaid said Manager Fullington charge of all Sales Marion T. sales General 26, /1924, Full- pay Marion T. from and after November and said gross ington commission on the of all per (15%) fifteen cent corporation, their or distributed aforesaid products manufactured drawing sixty account assigns, and addition thereto a heirs ($60) per payable weekly week in advance after on and dollars ($60) sixty from January 1st, per said week to be deducted accruing Fullington Marion T. at the commissions end total said period months’ thereafter. of each three “ agreed foregoing that is further consideration said ‘It .Fullington T. is to devote his entire and attention to Marion time ¡aforesaid opinion if when in corporation and the business require corporation it; it the affairs the aforesaid Fullington agreed and understood that Marion-T. is further said spent in use his own as to the time the office and the spent on time the road. “ Fullington agreed said Marion T. will be ‘It further that corpora- Board of Directors of the aforesaid made member 1st, tion effective December “ agreed contract and ‘It further understood (5) agreement period remains full force and effect for a five (6) years 26th, 1924, six from November thereafter until given party been from to the months’ advance notice has n other. “ ‘Signed day November, 19|24. this 26th “ OZARK POULTRY SUPPLY COMPANY, ‘THE “ ‘By:
“ ‘(Signed) Seth T. *President. Woods, “‘(Signed) *Sec’y-Treas. R. E. McBride, “ ‘(Signed) Manager. M. T. Sales General Fullington, “ ” ‘(Signed) J. E. Witness.’ MoQuade, petition, alleging terms, first contract in count of the after according legal it, pleaded appellant interpreted it to its effect as discharge alleged appellant of his duties entered Manager gave respondent; Sales that he time as General things ability performed did all to be done and January 1, 1926, date, until after which “the under the contract wholly plaintiff to permit refused to or allow the continue andAvholly employment under contract breached his services said thereby employ- longer to be bound as to the same, and refused Ap- payment of him thereunder.” plaintiff ment January alleged that, 1, 1926, time pellant further August 27, 1927, ready, at all times able bringing he was suit on *5 agreed performed by him to willing perform services to the and per- refused to respondent that contract, the but under failed and petition ap- that also stated work thereunder. to mit year in 1925 one week the at the rate payment for pellant received by which, per cent commission the week; that the fifteen per $60 contract, respondent agreed pay to to appellant, only amounted to $5.42 from 26, November 1924, when employment the began, to January 1, 1925, very and to a during small sum year the 1925, and did not exceed per $60 in week 1927. Accordingly appel- alleged lant in the first count of the petition that he had a cause of against respondent action in the sum of $8,100, which was for fifty- 1925, fifty-two one weeks in weeks in 1926, thirty-two weeks drawing in at the account $60 rate of per specified week in the contract. Respondent contends that the trial properly court sustained the to demurrer the first count of the because the terms of the give contract appellant right unlimited to decide later the nature and performance extent of his and whether or not he perform would at all. particular terms the contract to which respondent repeated are refers here as follows: “ agreed ‘It is further in consideration of foregoing the that said Fullington Marion T. is to devote entire time and attention to the business of corporation the aforesaid and when in opinion if judgment corporation require it; affairs of aforesaid it' is agreed further and understood that said Marion T. Fullington is to judgment use his own as to the spent time office ” spent time (Italics on ours.) the road.’ Respondent argues foregoing that clause of the contract of employment promise makes the of appellant perform conditional on his own free will. It is therefore a unilateral contract, analogous agreements to supply merchandise which no quantity is stated. Respondent concedes that appellant might quantum sue meruit for the services which actually he performed January 1, measuring the value of his services contract, but that he could not sue for a breach of the entire contract. If
I. present disregard we apart and set the recited con sideration purchase by appellant of stock respondent cor poration, contract, as made the parties by their agreement in writing, was that ap hired pellant general as its manager sales charge of all a period years of five 26, 1924, November there after until six months ádvance notice given of termination should be party, at compensation the rate of stated, appellant accepted the employment. Both parties agreed also appellant was to devote his entire time and attention to business re spondent if opinion when affairs of corporation required They agreed it. further use his own how much time he was spend in of respondent office and how much time on the road in perform-
1173 anee of general bis duties as manager sales charge in of sales. all The discloses supplemented agreement his by serve taking up general the tasks of manager sales on November 26, 1924, the effective of date the agreement, performing them until discharge January on allegations 1926. And these petition are to be taken as true for purposes the of the demurrer.
It general is obvious that a manager charge in of all sales of a trading corporation largely is responsible for the success or of failure the business of employer. He which, holds an office by its nature, very in him a vests certain of measure discretion how and where and when will manage he the sales. He is not like factory unto a hand punches who a time clock when he enters and shop, leaves the and who right judg- leaves much of his of private ment out doors when he place takes assembly the line of the plant. elementary It is that contracts depend performance up- which wish, on the the will or pleasure the of parties of one the are uni- lateral and cannot be enforced. authorities cited support proposition if, indeed, support needed. of is One these 13 authorities is Corpus Juris, 704, page 634, Section where the rule is thus stated: “A promise which is made conditional on the will promisor generally value, is of promises no for one who to do a thing only pleases if it '¡not perform to do it is bound to it at all.” That is as it accounting should be. There is no for the tastes people everyday or of law life in courts no tests for or tastes whims or wishes can be devised.
aBut different of law govern rule should does those functions of men to which a applied. rule of reason can Of these are be there by agreements acts which permit require judg- or the exercise ment, or discretion, concrete, measured and extrinsic limited the facts particular acts, pre- circumstances of the case. These on actor, being dicated capable are tested men, applying other powers lessons their own minds - experience of human thing scrutiny. and under done reports goods abound with work is or cases to be done where bought buyer. uniformly to the satisfaction of the or It hirer may person accept held these eases that to be satisfied who reject accountability or or work without merchandise particular express. which These of de- may sentiment he rules peculiar involving cision have artistic sensibilities force cases exquisite tastes, statuary like. purchase paintings, bought But in property be cases the work to be or the where done subject even person, approval person, of a third though buyer, must exer- attorney agent he be the hirer or or caprice, or powers faith, cise his bias good without 1174 subject scrutiny prejudice, and review of courts of
justice. Livesley held, And thus it was in the case of v. Johnston (Ore. Sup.), Pac. L. R. A. 783, peti- demurrer to a *7 specific performance hops tion of a contract to sell plaintiff, to mutuality that the contract was not void for want of it because con- “leaving quality a clause hops tained the and condition of the at delivery judgment buyers.” (Italics ours.) the of of the time privilege exercising Oregon Of judgment, Supreme the Court the case, in c. 788: said this
“Livesley reject hops and could not on whim Company the mere good volition, judgment or must in an sheer but faith exercise honest premises, they, by through in the and unless or their themselves agent, rejected they them, so nevertheless bound for the would price. Being judgment ease, party passing upon a and their own they good propriety suggest act with morals decent would rights circumspection regard for a considerate the seller scrutiny own; greater will with as well their and the law look they wholly if disinterested their determinations than were qualifies While condition to a certain extent the arbiters. quality in promise accept pay hops, to for the if choice not, by negation, destroy good agreed upon, the condition, as it does ordinary efficacy If had been the one promise. the sale seen, would goods chattels, buyer, or as we have have exercised goods or chattels rejection his and the peril, his as to at shown, quality and condition notwithstanding, to be of could be buyer accept, must also agreed upon. bar, In at a sale like the one good faith, the in absolute judgment, honest unless his exercised ’’ commodity for. is not such as was contracted agreement gave to bar, right which the So, too, in at the case business attention to the Fullington time to devote his entire required, was respondent if when affairs as he much or as little Fullington to work as option to not altogether. fancy, labors or, to cease pleased, pleased if it Fullington given and reserved latitude company, how much give to the he how much time should determine road, power was a on the how much spend in the office he should courts in the be tested could servant of which use or abuse which de- power not a it was But proper case. master contract. stroyed mutuality of the 414, 1 L. Thorp, 36 Fed. Company v. Printing Campbell Press In Su United States Judge justice later a 645, R. S. BrowíN, policy which public no reason know of Court, “We preme said: or the of one decision contracting parties from prevents be conclusive.” other shall
1175 Company, 200 App. equity Warren v. Coal Mo. was a suit enjoin withholding plaintiff from ship certain defendant agency ments of coal under a sales contract. The was that defense mutuality. the contract was unilateral void for want of court, overruling this, he failed to sell or commented: “If refused try sell, only comply contract, that was a failure to but with nothing characterizing had nature of the contract.” do with App. Mo. l. c. [200 445.] discharged A can be be- period servant who is hired a stated 82 [Beggs Fowler, Mo. only end for cause. v. fore the of the term Dry Co., 599; 359; 17 Barr Goods Sugg Blow, v. Mo. v. Wm. Wade 668; case, App. 155 W. Mo. App. 629, Mo. 177 S. Same League 1084; Baseball 134 S. W. v. St. American O’Connor Louis many cites Respondent 181 W. Co., App. 167, Mo. S. 1167.] they deal with support of his contention. But cases quantities which the products, ties, milk other of railroad *8 any norm for such de- set not limit or determine or contract does buyer the to termination, they with sales which leave or deal by will, purchased power quantity of fixation of the the article The they not in any point. In case are or wants. wishes been over- have petition should first count of the demurrer ruled. parties obligation is founded on
II. decision reached for the serve hire and to promises to arising out of their mutual agreement, supplemented fend in the period stated necessary for not it is by service. Therefore actual pur- to determine whether case a decision of this stock, to the shares of its respondent of by appellant chase con- further valuable a recites, $3,000 as the amount consideration of the contract, independent supporting the sideration or additional Independent parties. promises of the mutual of the to turn action, serve of a cause consideration, such as release contracts employments steady even lifetime constant, into party. at will determinable be would which otherwise hire App. Railway 60 Mo. Co., 223.] City Cable [Harrington v. Kansas need the not does in this case taken, contract in the view But it inde- make consideration valuable independent support of except for cause. limited the time before terminable con- is not a stock purchase deciding, the recited If, without other appellant, hiring respondent’s supporting sideration considerations sufficient, is promises of mutual consideration W. Company v. Investment Realty & Drummond may be severed. 479, quotes W. 178 S. (Mo. Sup.), Company Trust Thompson H. ope “If page effect: (9 Ed.), star on Contracts Persons ground as the considerations, which recited are of several or more illegal, and but not insufficient, only frivolous and be promise, of a undoubtedly the sufficient, considerations then good and are others those disregarded, while severed, which are void and those may be promise.” will sustain the which are valid full for cash of stock at value purchase of the consideration illegal. by no means is the case re- stated, the cause reversed For the reasons part its to set aside that directions trial court’with manded petition, first count of upon the judgment which was final petition, and there- first count the demurrer to overrule according law, first proceed upon the count after to third as it concerns second so far stand heretofore entered may rendered final and to abide whatever counts CC., concur. Westhues, Cooley and first count. FitzsimmONS, C., foregoing opinion PER CURIAM: —The concur. All judges court. adopted opinion of the as the (2d) 523. W. S. McGuire, Appellant. Robert The State v. Two, June Division