*1 MARCH TERM, Co. Williams Hesser Coal when In of record presented the the view facts light considered in the of referred decisions upon presented. right has no recover theories tiff re- It is he therefore recommended versed and the trial. remanded for a cause new opinion

PER foregoing CURIAM: The Biggs, adopted opinion' judg- is court. C., accordingly ment of the circuit court is reversed and "the cause for a new trial. Allen B.echer, remanded JJ,, concur. Respondent,

R. H. WILLIAMS, T. v. JOHN HESSER Corporation, Appellant. COMPANY, COAL Opinion Appeals. May 3, St. Louis Court of Filed Yearly 1. MASTER AND Employ- SERVANT: Contracts: Contract of Presumptions. ment: Continuance Service: Where employed take business of defendant’s under a contract payable rate of him the month- ly, years, least two between the something hiring year than a mere more at so much provision in that it contains indicates an intention that hiring basis; shall on a be and it conceded that at the end the second and also end of the third agreement, defendant’s service without a new presumption arose through was to continue year; presumption being fact, another such one of does not alter original contract, the terms of but continues and does not express implied convert an into simply contract, but parties agreed raises an inference fact that the to extend the operation year. contract for old another Discharge Question 2. -: Servant Cause: of Fact. In an damages employment, action for for breach of a contract of whether was because of or failure on ' question his duties fact. 207 MISSOURI APPEAL REPORTS,

Williams Hesser Coal Finding 3. APPELLATE of Fact: Not Interfered With PRACTICE: Supported by finding When Substantial A of fact Evidence. court, sitting *2 jury, by lower will not be interfered with a appellate court in event there is evidence in substantial support record to it. Discharge 4. MASTER AND Servant: Shows SERVANT: of Evidence: damages Wrongful Discharge. con- In for breach of an action for ample support finding employment, tract of evidence held plaintiff’s not because or failure of on his his duties. Discharge Damages: Wrongful Servant: 5. DAMAGES: Excessive Damages action In an Under Excessive. Evidence Awarded Not employment, damages under where for for breach contract of. per out and was $150 the contract received month employment the rate four then work secured for months and salary per per than month, month less $115 $35 discharged having contract, the contract when been under the plaintiff’s run, six time had months plus $670, being months for four month $150 favor for not excessive. for two months was month City Appeal of St. Louis.— Court of Circuit Judge. T. Jones, Hon. William Affirmed. appellant. Mueller W. for

John compensa- agreement with the An per annum, in absence a certain sum forth at tion set provisions, not create does of additional year term. Chad- definite —nor App. Hoyle De Co., 569; v. v. & 170 Morris 111. wick Co., Long, 227 Fed. 471; Thullon v. Electric 248 Pa. St. 490; 121 N. Co., C. Martin v. 837; Edwards Railroad College, Drury v. 1.7; 148 N. Y. Brookfield Co., v. Ins. App. Ill Co., v. Lead Mich. 379; Mo. Fuller White 139 Cupp 46 N. Y. S. 542. Nor v. Coal does 221; Co., years” least “for at create of the words addition year-to-year The addition of contract. these words a" employment for two a term of terms not create does 199 1921. MARCH TERM, Williams v. Hesser Coal N. Y. 172 Theile, v. of one Van Veer each. der employment relationship An which is 628. S. agreement term conclusion new at the automatically capable agreed upon, if provisions according

renewed, term and is renewed Servant, original La Master and 1 on the p. contract. Batt v. Lanch 432; Cal. 707; Littlefield, Herman v. Floyd, A App. Eliner, 184. v. Pa. 177; Wallace relationship of master servants created required writing, be- of Frauds to be the Statute performed within after cause same cannot be one beginning, automatically renewed of its cannot be date agreement. memorandum Chase without written Campaign, 102 Railroad, 384;- 97 N. Schott La Y. p. Servant, N. 901; Y. S. 1-La Batt on Master and *3 agreement, origi- expiration of the term Such after the nally agreed written on, if without a memo- employment thereof, will, randum because an at termi- party. any at either Railroad,97 nable Chase v. Campaign, 901; N. v. 102 N. 384; Y. La Y. S. Schott ’p. 1 Servant, La on Master Batt and 717. Such an agreement, under such circumstances as above, stated employment year. does not become an for a Van Der 628. Theile, v. 172 N. Y. Veer S. respondent.

Henry Oberschelp H. for (1) The contract “constituted years plaintiff” the minimum. Arnold with of the two App. Ry. Spring v. Co., v. 147 Mo. Bradner 451; Steel App. Kelly Co., 115 v. Carth 102:; Rockdale Powder Mo. age 598; Shiliito, Bascom v. 37 Oh. Co., 62 Oh. St. Wheel App. Brightson 557; Y. Div. Co., 84 N. 431; St. Claflin Exchequer Accordingly Pinto, Down the Statute apply. raised not Furthermore was not Frauds did (2) discharge pleadings in the evidence. nor The wrongful. of the was “The grounds any not out defendant was because of set REPORTS, APPEAL MISSOURI Coal v. Hesser right reserved defendant contract, in the wherein option £In case at its to terminate your part any reason on failure or ” Emberson- Butsch v. perform the duties of the office.’ App. Impl. Brantingham 197 Mo. Co., damages for an action C. This BIGGS, employment. alleged breach of a contract.of agree- petition “by is that defendant, duly into between ment and contract entered corporation, acting through duly authorized officer its plaintiff, representative Ohio, Cincinnati, and and at Virginia, Richmond, located tiff as general agent $1,800 rate sales years payable monthly, of at least agree- February with said 1912; that in accordance 1, performance upon his ment entered and remained defendant’s duties thereunder and during employ full from said three year, during months of the fourth and the first six July, contrary in violation 1915, when, until and and effective said which had become year, viz., until least until the end of said fourth Febru- justifiable ary good defendant, or 1, 1916, wrongfully employ cause dismissed its excuse, ready discharged plaintiff, times who was at all willing carry out said contract and thereunder, thus duties breached said *4 damaged plaintiff in contract and the sum fifteen which, costs, and interest dollars and hundred tiff judgment against prays defendant.” general' After the defendant had filed a denial the the court cause was before without tried the aid of a jury and was rendered for for proper $753.75, which the in sum perfected appeal court. manner has to this

MARCH TERM, v. Hesser Coal peti- that the in main are Defendant’s contentions defendant’s action; that a cause tion failed state been should have of the at the close evidence demurrer finding’ given; that contract in the court erred capable in of renewal in be .the suit was such agreement of the at the absence of a new termination upon; agreed in error inhered term ruling contract of effect that court to the re- and constituted automatically writing memorandum or newable required by. court was Frauds; that the and the Statute ruling contract of erred in not that the any the de- at will and determinable one fendant. between the and

After several conferences president company entered agreement by. between letters into written evidence February 5, 1912, them. On the de- wrote company stating that had no a for- fendant he desire for gave understanding agree- mal contract their as follows: ment

‘‘ per That I am of $1800 rate payable monthly, of at least February 1, 1912, and a $1.00 bonus car on all commercial of 160 coal in cars month.” .excess through company 7,1912, On the defendant president plaintiff’s replied its to the letter as follows: your

“Answering letter say 5th, of the I will satisfactory perfecty you mentioned are terms my understanding agreement. accordance with of our reply inst, Tour letter of the 5th, this constitute necessary. agreement only qual- all additional I may include ification will is that option company terminate at in case of dis- ability, your failure reason on always the duties of the office. I have inserted agreements, feeling only justice in all such this that it is *5 REPORTS, APPEAL MISSOURI t. Hesser Coal you company I trust understood. to the this have objection will no it. have agent general sales be official title should

“Tour yon are in fact.” Thereupon plaintiff up duties of the took the agent at the as its sales served office Virginia, period of entire the Richmond, years for the 5th. theAt mentioned in the letter expiration years plaintiff continued such of the two as agreement agent any written either sales without new written, one-half thereafter verbal or for one August until the at employment giving terminated therefor the a reason being operated the at a loss and had office prior been for the six months 'thereto. After his dis- plaintiff the for four out position months and then secured month. $115 damage by salary The claimed the is his August following February 1st, until the which would be year end of the from the of the con- fourth date tract, at rate of what a month he had been less able to earn within that time.

In with the contention of accordance parties court below construed the contract between by ,yearly evidenced the letters as by automatically which was renewed continuing year year tiff service n any yearly employment new application. of Frauds had no Statute complaints against may Defendant’s question be answered solution whether as to the contract embodied letters constituted an em- ployment by only to be terminated end each one at or is will that could be terminated party expiration either time after the two-year period. question one of the intention gathered from the be between In them. this

MAECH TEEM, *6 y. Hesser Coal tbe only from may reasonably not case it be inferred but surrounding parties circumstances and conditions yearly a language that in the contract used employment contract At the intended. was employment permanent gave up was made the 'the de of and removed to Eichmond and took employed him under contract business, fendant’s a monthly, payable “at the rate of $1800 years February 1912.” a 1, of at least two of minimum fact that run for The contract to a was provide yearly em intention to indicates an a ployment. parties is some between the sq .year hiring thing much more than mere provision it indicates intention that contains a an hiring v. yearly basis. [Arnold that the shall be on Railway Company, App. Spring S. 131 Steel Mo. 612 110 App. 451); (same Mo. 147 Bell v. W. 650 case Warehouse v. 1014; Mo. l. c. 103 Morris 489, 205 S. W. Co., City (Kansas Supply App. Briggs Photo 192 Mo. Co., Appeals) 179 W. Bradner 145, l. 150, 783; Court c. S. App. Co., v. 115 Mo. W. Rockdale Powder 91 S. (N. S.) L. A. 529; 25 Note: 997; Hinds, Warden R. v. (N. S.) Ritter & 51 L. R. A. Watts, Co., 629.] Reasnor It conceded that at the of the end second pliantiff third and also the end agree service defendant’s without a new presumption ment, arose that the year. presumption through to another Such continue not but terms one fact does alter continues the express original and does convert of the contract not an implied simply contract an inference into but raises agreed operation to of fact extend the year. Briggs [Morris contract for another of the old supra; Company, Supply Bell v. Co., Warehouse Photo supra; Master and Servant, 1 Labatt on 230; see note Dry Company Goods the case Stewart v. Hutchi to page A. C, 706.] L. R. son, REPORTS, APPEAL MISSOURI Hesser Coal Co. Williams v. properly

We think court construed employment. providing irrespective whether Defendant claims that discharge right will plaintiff at defendant had a option right at its had terminate provided letter to the its disability, reason “in case of failure or 7, on your part perform As office.” duties o+' plaintiff was because to whether on his duties or failure sitting question lower court in the case of fact which the jury find- with which as a solved in favor *7 by ing in the event with us there is not be interfered will support it. We find to substantial record evidence ample support finding be- to such as the letters evidence parties com- indicate that had no defendant in tween plaintiff per- plaint the manner to make but concluded to discontinue the his services formed expenses. in order reduce Richmond office While tended defendant’s evidence show that true that is plaintiff contemplated coal as was not sold as much had by that the office Richmond con- and was loss, a stated there evidence tend- ducted at still ing did not blame to show this condi- plaintiff. tion on the to be con- can the verdict be said excessice as

Nor by Under the defendant. tended per month. out of He was work for four $150 received then secured at the and -rate months per per month month which was less than his $35 $115 having salary Plaintiff the contract. under been dis- August charged contract at 1915, on 1, that time had During 1,1916. or until run (cid:127)six months this remaining four months was idle and the per he was month. $115 This months given plaintiff’s judgment justified by favor as per month for plus four $150 court for months $670 judgment month for two months. $35 MARCH TERM, Day Rainey Latter Saints. September

court with interest from 14, 1916, amounting making judgment six cent a total $83.75 was warranted law and $753.75 evidence should be affirmed. foregoing opinion

PER CURIAM: The of Biggs, adopted opinion 0., is as the of the court. The accordingly of the circuit court is affirmed. Allen, J.P. sitting J., -'and concur. Becker, J., not Danes, Respondent, v. RAINEY, EUGENE REORGANIZED THE LATTER CHRIST, OF CHURCH JESUS Appellant. Corporation, DAY SAINTS, Opinion Appeals. May 3, St. Louis Court of Filed Appeal: Sufficiency. JUSTICES THE OF PEACE: Notice of Under particular section Revised Statutes no form notice justice appeal required, from a court a suit where justice peace instituted before against corporation individual, defendants, and the *8 justice hearing against found after in favor case n corporation dismissed case as to other defendant, judgment appeal justice notice from the style instituted, case failed to word, the name of the individual defendant and omitted cor- defendant, poration, also failed after mention upon rendered, date which it amount sufficiently notified the below had taken appeal judg-, therein to circuit court case in justice. ment been rendered before the had Appeal City from the Court of the Circuit of St. Louis.— Judge. Garesche, Vital

Hon. W. and remanded.

Reversed