144 Mo. App. 554 | Mo. Ct. App. | 1910
I. Appellant has assigned as error that the stipulation or contract for services sued upon should not be held to be one for liquidated damages because the damages fixed in said contract are unreasonable and the real damages easily ascertainable.
We find that, all the circumstances considered, the damages are not unreasonable; nor are the real damages easily ascertainable. To say that the damages are unreasonable, the court must be able to say that they are grossly and clearly disproportionate to the actual damage. It is quite evident that this cannot be done in the present case. Here, an unusually large salary— sixty dollars per week — was paid a salesman. It is quite apparent that the sixty dollars was not compensation for ordinary services. The fact that the contract was made for one hundred and sixty weeks, or over three years, also clearly indicates that the plaintiffs attached considerable weight and importance to the services of the defendant and were willing to pay liberally for them.
So far as the ascertainment of the actual damages is concerned, it must be evident that that would be a
Giving due regard to'the language of the contract, the intention of the parties as gathered from the .contract provisions, the subject of the contract and its surroundings, the difficulty of measuring the damages for its breach, and the sum stipulated, the contract in suit was properly considered by the trial court as one for liquidated damages, and not for a penalty. “The true question is whether, in view of the actual breach complained of, the sum nominated in the contract is to be fairly regarded as a penalty, or as a fair measure of the real damage in the estimation of the parties most familiar with the probable effects of its breach.” [May v. Crawford, 142 Mo. 390, 402, 44 S. W. 250.] Cer
II. It is contended that the contract sued upon involved several covenants, and that the covenant for liquidated damages, being applicable to all these covenants alike, such" a contract will not be enforced by the court. The breach here assigned for which action was brought was in respect to matters which were regarded by the parties as of sufficient magnitude to be enumerated and guarded against. The law undoubtedly is that before any liability to pay liquidated damages can attach to the party in default, he must have been guilty of a substantial breach of his agreement, a breach which has resulted in more than mere nominal damage to the other party. “This rule is so manifestly just that no discussion of it is necessary.” [Hathaway v. Lynn, 6 L. R. A. 1. c. 553.]
But the law does not declare that because a contract contains several covenants, some important and some trivial, and which attaches the same penalty to
III. Appellant further assigns as error the refusal of the trial court to admit evidence to the effect that his position with the respondents was unbearable, contending that the contract implies an undertaking on the part of the respondents to so conduct themselves as go not make his position unbearable.
It is to be noted in this regard that there- was no exception taken to the exclusion of this evidence at the time it was offered. This is fatal.' It is also shown that appellant had contracted his services to another party before his position became unbearable as he claimed. Hence the evidence was immaterial as the trial court properly held. And, it might be suggested that the
IY. Appellant insists that the cause of action sued upon by respondents had been assigned to the corporation, Werner Bros. Mercantile Company, and consequently the respondents could not maintain the action.
The evidence does not justify this contention. This suit was commenced on the 10th day of October, 1906. The assets of the partnership of Werner Bros, remained the property of that firm until October 25, 1906, so that at the time this action was commenced, Werner Bros. Mercantile Company, the corporation, did not own the claim of Werner Bros., the partnership, against this appellant. Besides this, the evidence fails to show that this claim was ever assigned to the corporation. While it is true that there is evidence of an intention to transfer the assets of the partnership in order to pay up the capital stock of the corporation, there is no evidence that such intention to transfer was actually consummated and'consequently no evidence that the legal title to the present claim was ever vested in such corporation.
V. Appellant further claims that respondents ought not recover because the corporation in which respondents became stockholders never offered the appellant employment as a salesman.
The record shows that the defendant himself testified that when he left Werner Bros., he went at once to the Werner & Werner Clothing and Furnishing Goods Company under his contract of May 2, 1906, and that he thereafter remained in the employ of that company. And it was further admitted by all parties that appellant left the employ of respondents on September 9th
Finding no error in the trial of the case, the judgment is affirmed.