167 Mo. App. 722 | Mo. Ct. App. | 1912
Plaintiff instituted this action before a justice of the peace, filing a statement of its cause of action, in which statement the contract between it and defendant, appellant here, is set out in full. Summarizing, plaintiff, designated as the party of the first part, and defendant, designated as the party of the second part, premise that the party of the first part, for and in consideration of the promises and obligations of the party of the second part, employs the party of the second part for a period of one year from January 7,1910, and ending January 7, 1911. In consideration of the employment, the party of the second part obligated and bound himself to devote all his time and best endeavors to the interest of the party of the first part, the party of the second part to work under the direction and to the satisfaction of the party of the first part and to perform such work as the party of the first part should direct, such work including the duty of machine operation and such work as the party of the first part should deem proper. As compensation to the party of the second part for the services to be performed by him, the party of the first part agreed
The contract further provides for the working hours and days in different months, for the payment of overtime, for the allowance of holidays and supper money, and “in the event of serious illness or death in the family of said second party, the party of the first part agrees to permit said party of the second part to absent himself for a period of two weeks.” This contract was signed by the several parties. The statement, alleging performance on its part by plaintiff of all the terms of the contract, avers that after the making of it, defendant, without just cause and in direct violation of the contract, withdrew from the services and quit the employment of plaintiff against its consent before the 7th of January, 1911, thereby committing a breach of his contract by reason whereof plaintiff claims defendant is indebted to it in the penalty of the contract, $250, to be paid by defendant to plaintiff as liquidated damages as stipulated in the contract. Judgment is demanded for this sum.
We are not directly advised by the abstract as to the result of the trail before the justice of the peace, but apparently plaintiff recovered there and defendant appealed, executing an appeal bond in due form which was approved. The case .coming on for trial before the circuit court, a jury being waived, the court at the conclusion of the trial refusing certain declarations of law asked by defendant, found for plaintiff and rendered, judgment against defendant and bis
Learned counsel for appellant makes four points for a reversal. First, whether the justice of the peace or the circuit court obtained jurisdiction because the written instrument, which is the basis of the action, was never filed with either court as required by the statute, referring to section 7412, Revised Statutes 1909. As neither counsel make any very serious argument over this proposition, it is not necessary to determine it and we pass it sub silentio.
The second point, and which learned counsel for appellant says is the main point, is whether the stipulation in the contract for a forfeiture in case of a breach shall be construed as liquidated damages or as a penalty.
Arguing that it is a penalty and not liquidated damages, the third assignment is, that the amount of the damages claimed is out of proportion to the breach alleged.
In the view which we take of the case, it is not necessary to go into a discussion of this third proposition, for it falls to the ground if it is held that the second proposition in the case must be decided against appellant.
It is argued as the main point in the case that the court below erred in .construing the contested clause in the contract to be as for liquilated damages and not as a penalty. That the court did so construe it is evident by the refusal of the declarations of law asked by defendant, to the effect that that was the meaning of the contract.
Learned counsel for appellant as well as for respondent, in support of their several contentions, rely on the decision of our Supreme Court in Thompson v.
Examining the testimony in this case as set out in the abstract, we have come to the same conclusion. It is evident from that testimony that the employment of defendant under this contract by plaintiff was not the mere employment of a day laborer or of any one that could be found' competent to do the work, but that the underlying thought of plaintiff in making this bargain with defendant was to secure defendant’s individual, personal, services. The defendant at one time had been a stockholder in the plaintiff corporation, which was a small concern .composed of Messrs. Myers and Goldberg, their wives and of this defendant. The defendant had $400 in stock in the concern. He became uneasy about the investment and the probable success of the concern and sold his stock to two of the members