191 Mo. App. 629 | Mo. Ct. App. | 1915
Action for damages for breach of contract of employment.
• Alleging in his petition the contract of employment of plaintiff by defendant for a term of one year to end January 1, 1909, performance by plaintiff and discharge 'without just cause before the end of the term, plaintiff demands judgment for damages sustained.
In its answer, upon which the case was tried, defendant admits the employment of plaintiff as buyer; denies that plaintiff duly performed his duties under the contract; admits he was discharged on July 11, 1908, but denies he was so discharged without just cause.. Averring that, beginning with the year 1903, plaintiff had continuously been in the employ of defendant as buyer, and that the contract sued on was a renewal of prior contracts, it is averred that it was the duty and within the power of plaintiff under his employment, to represent and act for defendant in-purchasing, at the terms and in the manner most advantageous to the defendant, goods, such as toys and the like, required for his department, and that the amount and character of goods to be purchased, the selecting of the dealers from whom they should be purchased,
A general denial of the new matter pleaded was filed in reply.
The case was tried to the court and a jury and from a verdict and judgment for plaintiff, defendant has appealed.
This is the second appeal by defendant. See Wade v. Wm. Barr Dry Goods Co., 155 Mo. App. 405, 134 S. W. 1084, for statement and opinion on the former appeal.
The facts in evidence at this second trial follow very closely on the lines of the first trial, with some
Plaintiff admitted that after he had ceased buying from Hamburger & Company he received no more presents from them, but explained that Hamburger & Company had gone out of business, Mr. Hamburger and his wife going to Europe, sending him and his wife Christmas cards from there.
In this latter trial it was in evidence that plaintiff’s purchases of the lines of goods in which Hamburger & Company dealt, including toys, averaged from fifty to sixty thousand dollars a year. The smallest purchase from Hamburger & Company in any one year that plaintiff was in the employ of defendant was something less than $6000 for toys, but the general average for toys had been from ten to twelve thousand dollars a year. It was also in evidence at this latter trial that one Allen, the general manager for defendant, presented plaintiff, shortly after Christmas of 1907, which was the time when he had been presented with cuff buttons, and his wife with a necklace by the Hamburgers, with a tailor-made suit of clothes because the season’s sale of toys by defendant that year, and which plaintiff had purchased for defendant from the Hamburger Company, had far exceeded the expectations of defendant. In this as in the former trial the evidence conflicted as to whether plaintiff had paid excessive prices for the toys included in his last purchase.
At this last trial plaintiff asked no instructions except one as to the measure of damages which is not criticised.
Defendant asked an instruction that plaintiff was not entitled to recover, which the court refused.
It also asked two other instructions, which the court refused, defendant excepting. We do not set these out here as counsel for appellant, in their assignment of error, have given the substance of them.
At the instance of defendant the court instructed the jury to the effect that if they believed from the evidence that plaintiff was in' the employ of defendant as buyer from April, 1903, until July, 1908, and if they believed from the evidence “that it was a part of his
Beyond the usual instruction as to the number of jurors necessary to concur in a verdict, these are all the instructions asked or given.
The assignments of error are, first, that the court erred in refusing to give the peremptory instruction requested by defendant that upon all the evidence plaintiff was not entitled to recover; second, that the court erred in refusing to instruct the jury as requested by defendant that if plaintiff, by accepting presents from Hamburger & Company voluntarily placed himself in a position where he would be tempted not to do his best in protecting the interests of his employer, such conduct was in violation of the confidence reposed in him and justified his discharge.
This brings us to a consideration of this second assignment, which counsel in their argument here put thus: “Can an agent, entrusted with discretionary power in the purchasing of goods for his principal’s account, accept, without his principal’s knowledge and consent, presents or gratuities of substantial value consistently with the confidence reposed in him?” Answering this in the negative, it is argued by those counsel that upon the admitted facts plaintiff was not entitled to recover.
An examination of the brief of counsel for plaintiff, as it appears in the report of the case on the former appeal (p. 406), shows that this last proposition is practically the same which was urged by those counsel on that appeal, and is sought to be supported by practically the same authorities then cited by them.
In the opinion in that case we said (1. c. 408), after noting that the evidence tended to prove that the presents in question came to plaintiff unexpectedly and without solicitation and were.more or less business or social courtesies arising out of the social relations of plaintiff and his wife and the officers of Hamburger & Company, reciprocated by plaintiff and his wife: “The evidence on behalf of the plaintiff further tended to prove that neither the friendly social relations mentioned, nor the presents received by him, in the slightest degree influenced him in his capacity as a buyer or caused him to buy from Hamburg’er & Company, or to give them any advantage in price or otherwise or to falter in unswerving loyalty to his employer and devotion to its interests.”
Taking up the proposition of counsel, we are not prepared to hold with defendant, as a matter of law, that the mere receipt by plaintiff of these gifts, establishes his breach of trust and was not open to explanation. Admit the fiduciary character of the trust reposed by the employment; admit the receipt of the gifts, it would seem that to warrant the discharge of an employee it should appear that the gifts were made for the purpose of influencing the employee in respect of matters within the scope of his functions (1 Labatt’s Master & Servant (2 Ed.), sub. div. C, sec. 279, pp. 852 and 853), leaving out of consideration all question as to whether they had in fact influenced him. Mr. Labatt cites no cases under this paragraph, but refers to chapter 1897, Laws of Pennsylvania, which impose a penalty upon designated officers of mines who receive or solicit money from employees for the purpose of continuing them in the employment or procuring employment for them. Two sections of the Laws of Rhode Island of 1905 (now sections 21 and 22, p. 1287, Compiled Laws of 1909), are also quoted. These make it a misdemeanor for any agent in public or private employ or public office to “corruptly accept, or obtain or agree to accept, or attempt to obtain from any person, for himself or for any other person, any gift,” etc., “for doing or forbearing to do,” etc., any act in rela
Counsel for appellant invoke the rule applied to trustees, as illustrated in Keech v. Sandford, 1 White & Tudor’s Lead. Cases in Equity, part 1, p. *58, commonly called the Rumford Market case, a case wherein the doctrine of constructive trusts was applied — a case in equity in which it was held that a trustee could not derive personal benefit from his trusteeship. The principle underlying the decision in this case has been applied in every case of like character that has been before the courts of chancery, the rule being so rigidly applied that the trustee is not allowed to show good motives or that no damage to his cestui qui trust results from his act. But we are to remember that-while much is said in these casés upon the duty of fidelity and loyalty on the part of the agent or trustee,' that the courts were themselves passing upon the facts. We are referred to no case in which it has been held that the rule is to be applied without consideration of all the facts in the case. It is true that Mr. Mechem (1 Mechem on Agency (2 Ed.), secs. 1188 to 1191) states the rule as to faithfullness of a trustee or agent very strongly and refers to the trustees as agents, but his cited cases are, almost without exception, cases in equity; in none of them are the facts present as here.
In the case at bar the crucial point is, were certain gifts made to the agent by reason of his agency and made to influence him on the line of his agency, and would reasonable men, passing on the acceptance of these gifts, say that the giving and receipt of them
The jury had the evidence of the whole transaction before them, the amount of the gifts, the amount of the dealings of plaintiff with those from whom he purchased for defendant, as well as the times when and circumstances under which they were given. They were all given at Yuletide; were Christmas gifts; given at the time when all the world is full of charity and goodwill; when, as we are told, even soldiers in opposing, trenches and in deadly struggle, stop and make gifts. Who would say that in such acts these soldiers were disloyal to their cause. All the facts being present, as here, the issue tendered as here, in an action at law, as here, it was for the jury to say whether, on these facts, they, “as reasonable men,” “acting reasonably,” would say the gifts were “substantial gifts” and were bribes; whether under color of gifts at such a time and of such character, a corrupt, a corrupting motive lay back of their giving or receipt. We decline to here say, as a matter of law, that on the evidence, the receipt of such gifts, under like circumstances, are to be conclusively held to be acts justifying the discharge of the agent. In brief, we hold that on its facts and issues made, this was a case for the jury. In that view we see no reason to change our holding on this point as set out in the former opinion in this case.