74 Mo. App. 355 | Mo. Ct. App. | 1898
The plaintiff filed a motion to set the sanie aside which was sustained on the ground that there was error committed in the admission of evidence and the giving and refusing of instructions. From the order setting aside the verdict and the granting of the new trial the defendant has appealed.
One of defendant’s counterclaims was for the sum $200.20 for commission for writing a policy of insur-. anee on the life of N. T. Eaton. It was disclosed by the defendant’s own testimony that he based his right to commission for writing this insurance on a written contract with plaintiff which had been executed in duplicate. The defendant testified that he had lost his duplicate part, and thereupon the defendant, against the objections of the plaintiff, was permitted to testify as to the contents of the contract so in duplicate. No notice had been given plaintiff requiring the production by it of the duplicate part retained by it.
The ruling there made must be repeated here.
And in giving the following instruction .for the defendant, to wit: If you find that defendant was employed by the company as its cashier at a salary of $150 per month, and that that employment did not embrace services as inspector of risks, and that while so employed as cashier he was requested to act for the company as inspector of risks at Kansas City, that he is entitled to compensation for such additional service, and, in the absence of an agreement as to what that compensation should be, you should allow him for such service what it is reasonably worth, as shown by the testimony.
These instructions it is seen assert opposite theories. If the former are correct expressions of the law the latter, which were given, are erroneous. The evidence tended to show that the defendant was employed by the plaintiff in the capacity of cashier in its Kansas City office, at a salary of $150 per month; that shortly after his employment Halbert, the plaintiff’s Kansas
The question remains to be considered whether or not, under the evidence, a brief summary of which has just been given, the action of the trial court with respect to the giving and refusing the instructions hereinbefore set forth was error. The presumption of the law is that all services rendered by an employee during the period for which he is employed, of a similar nature to those of his regular duties, are paid for by his salary, and to overcome this presumption he must
The president of a bank superintended repairs upon a building belonging to the bank, it being left in his hands by the directors. He sued for extra pay for attention to the building, he having devoted all his time to it. There was no evidence of any understanding that he should act in any capacity other than as president and director. Held, that he could not recover. Pew v. Bank, 130 Mass. 391.
“A person employed as a secretary of a private corporation, at a fixed rate of compensation, can not demand extra pay for services in that capacity, which were not anticipated at the time of his employment, or which were not enumerated in the charter or by-laws. The fair construction of his contract is, that he will do whatever his employers may have occasion to employ a secretary about.” Carr v. Coal Co., 25 Pa. St. 337. The application of the principle asserted by the plaintiff’s refused instructions will be found further illustrated by reference to the
It results that the order of the court in setting aside the verdict and granting a new trial must be affirmed.