101 F. 219 | W.D. Mo. | 1899
Nathan Kosenberg presented a claim against said estate for §1,200 for unliquidated damages growing out of a breach of contract. The referee having disallowed the claim, the controversy is before the court for review'. The controversy grows out of substantially the following state of facts: The bankrupts, Silverman Pros., were engaged in mercantile business in Kansas City, Mo., and for the year prior to September 6,1898, the claimant, Nathan Kosenberg, was in their employ on a salary of $15 per week. On September (5, 1898, Silverman Bros, executed the following instrument of writing:
“Kansas City, Mo., Sept. 6th, 1898.
“We, Silverman Bros., agree to pay Mr. Rosenbeig $60.00 per month, and three per cent, for sales over $15,000.00, for one year, to manage our shoe department.
“[Signed] Silverman Bros.,
“By S. Silverman.”
Kosenberg claims to have accepted this contract, and entered upon its performance, and so continued until the 9th day of January, 1899, at wiiich time Silverman Bros, made a deed of trust on their stock of goods in favor of their creditors, they being largely indebted, and
“It very .frequently happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be-a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be applied; as, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or-allow to be done the act or things necessary for the completion of the contract, will be necessarily implied.”
The insolvency of Silverman Bros., and their inability to proceed with their business, whereby Rosenberg was thrown out of employment, constitutes no defense to an action by the employé for a breach.
On the discharge of Bosenberg without his fault or consent, a cause of action at once arose in his favor against Silverman Bros. He would not have to wait until the expiration of the year covering the term of his employment before he could institute the action. In such action he would be entitled to recover the amount that would have been due him if he had continued to work for Silverman Bros, under the contract from the date of his discharge until the expiration of the contract, after allowing credit for anything which he may have earned from services rendered to others, or under other contracts, after allowing further credit for what the court or jury hearing the case may believe from the facts and circumstances in evidence he will he able to earn between the time of trial and the termination of the year. Boland v. Quarry Co., 127 Mo. 520, 30 S. W. 151.
The evidence in this case shows that the claimant was paid his monthly wages up to the 9th day of January, 1899, when the trustee discharged him. The evidence further tends to show that he was thereafter for a few days employed by the trustee in and about the store in taking an inventory, and that shortly thereafter he earned about §15 in some other work that he had undertaken. His testimony further discloses the fact that he was at the time of giving his testimony before the referee employed by some other party on commissions to he earned by him. Taking into consideration, therefore, the fact that at the time of taking his deposition he was not engaged in so remunerative business as his former employment, which insured him at least 860 per month, and his known energy and activity, it is reasonable to assume that between the 1st day of February and the 6th day of September, 1899, he could earn at least 30 per cent, of his former definite salary, which sum, deducted from the aggregate of his salary np to September 6, 1899, would leave, say, in round numbers, §300 as a claim against the estate.
In respect of the 3 per cent, commission on sales over §15,000 for one year, provided for in the contract, there is more difficulty. On this issue the burden of proof rests upon the claimant to furnish the court: some tangible, substantial data upon which to estimate such "probable earning, to enable the court to keep out of the field of mere speculation and guess. The evidence in this case shows that the amount of sales or business done by Silverman Bros, for the year preceding September, 1898, was §13,000; and when one of the Silver-man Bros, was on the witness stand he was inquired of as to how he came to fix upon §15-,000 as the amount beyond which he allowed the 3 per cent, commission. His answer was that he figured upon an increase of §2,000 in business. So, it is made manifest that, taking as a basis for reasonably estimating the amount of business for the year between September, 1898, and September, 1899, the accomplishment of the preceding year, he did not expect a business of over §15,-000, and therefore the 3 per cent, commission would largely depend upon the extraordinary energy and good management of the claimant himself. The claimant seeks to base his estimate upon an excess
The conclusion of the whole matter is that the court finds that the claimant is entitled to have allowed against said estate thq sum of $300, which covers a period of eight months; and as under Bankr. Act, § 64b, subsec. 4, wages due to clerks or servants, which have; been earned within three months before the date of the commencement of the proceeding, not to exceed $300, are given priority, to work out the equity of the case the claimant should he allowed three-eighths of $300 as a preferred claim, amounting to $1.12.50, and the balance as a general creditor; and the claim will be certified to the referee, to be allowed accordingly.