Bittner v. Crown Shoe Manufacturing Co.

340 S.W.2d 142, 1960 Mo. App. LEXIS 459
CourtMissouri Court of Appeals
DecidedNovember 15, 1960
DocketNo. 30341
StatusPublished
Cited by7 cases

This text of 340 S.W.2d 142 (Bittner v. Crown Shoe Manufacturing Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bittner v. Crown Shoe Manufacturing Co., 340 S.W.2d 142, 1960 Mo. App. LEXIS 459 (Mo. Ct. App. 1960).

Opinion

RUDDY, Judge.

This is an action for recovery of commissions for services rendered by plaintiff (respondent) as a shoe salesman for defendant (appellant). Plaintiff recovered a judgment against defendant on Count I in the principal sum of $2,340.60 plus interest in the sum of $468.12 and on Count II in the principal sum of $50 plus interest in the sum of $10. Defendant appeals from the judgment.

Plaintiff’s original petition contained three counts. Before trial he dismissed Count III.

It is alleged by plaintiff in Count I of his petition that on or immediately prior to November 14, 1953, he was employed by defendant under an oral contract of employment to sell a line of shoes known as “College Deb” in the states of Arkansas, Louisiana, Oklahoma, Texas, and Mississippi, with the exception of certain specified accounts and that plaintiff was to receive as compensation 5% commission on net sales made in said territory.

[144]*144The petition further alleged that on November 14, 1953, plaintiff accepted said employment by letter. A copy of said letter was attached to the petition and by reference was incorporated in and made a part of the petition. Said letter is as follows:

“Nov. 14th, 1953.
“Crown Shoe Co.,
“1204 Washington Ave.,
“St. Louis, Mo.
“Attention: Mr. Bennett Frelich
“Dear Bennett:
“At the time Mr. A. Tober agreed to have me carry the College Deb line it was understood that my territory should be the same as the Cangemi line, Ar., La., Okla., Texas, and Miss., with the exception of the following accounts:
Given Bros., El Paso, Texas'
Graham Brown, Dallas, Texas
Lewis Stores, Waco, Texas
United Shoe Stores, Shreveport, La.
Berkley Shoe Store, Longview, Texas.
“At the Dallas Show you added these to the list:
■-‘Ben Daniels, Port Worth, Texas and Kórnblum, Houston, Texas.
■ “Also, at the Dallas Show you gave 'me prices at which I can sell accounts with a pairage of over one thousand pairs with a minimum of seventy two pairs to a shoe with a three per cent commission.
“If at any time I should not be able to sell an account at either of the above prices that will buy volume I shall contact you before turning down the account so that it can be worked out if possible.
“Sincerely,
“F. O. Bittner, Jr.”

Plaintiff further alleged that he sold said “College Deb” line in the territory mentioned and earned commissions on shoes sold by him in the period beginning in December 1953 and ending in March 1955, in the total sum of $2,340.60, and that defendant has failed and refused to pay said sum.

In Count II of said petition plaintiff real-leged some of the averments contained in Count I and further alleged that it was understood and agreed between plaintiff and defendant that plaintiff was to have the exclusive right to sell the aforementioned College Deb line of shoes within the territory named, with the exception of the specified accounts referred to, but that contrary to said understanding the defendant, by and through its employees and officers, sold the said “College Deb” line to certain accounts within said territory other than the excepted specified accounts and failed to credit plaintiff with his commission earned, which he alleged was in excess of $7,800.

Defendant in its answer to Count I of plaintiff’s petition admitted that plaintiff was engaged to sell the “College Deb” line of shoes in the aforesaid territory, and admitted that the commissions earned amounted to $2,340.60 and alleged that the commissions were paid in full in the following manner, pursuant to an agreement defendant had with plaintiff. In pleading this agreement defendant alleged that:

“Plaintiff had been employed by Sel-wyn Shoe Manufacturing Corporation, a corporation, to sell shoes in the territory alleged in paragraph 2; that said Selwyn Shoe Manufacturing Corporation is a subsidiary of a corporation known as Tober-Saifer Shoe Manufacturing Company; that the defendant is also a subsidiary of said Tober-Saifer Shoe Manufacturing Company, and that in order to assist the plaintiff to earn the drawing account which the said Selwyn Shoe Manufacturing Corporation was paying to plaintiff, the said Selwyn Shoe Manufacturing Corporation arranged for the plaintiff to sell a line of shoes known as ‘College Deb’ which was manufactured by the defendant, and that it was understood and agreed that all commissions to be paid by said defendant, Crown Shoe [145]*145Manufacturing Company, to plaintiff, were to be paid by this defendant to Selwyn Shoe Manufacturing Corporation, who would in turn give credit for same to the plaintiff, and that from and after November 14, 1953, said arrangement was carried out by both plaintiff and defendant.”

In its answer to Count II defendant denied that plaintiff had the exclusive right to sell the “College Deb” line of shoes within the territory described in plaintiff’s petition.

It was further denied by defendant, in its answer to Count II of plaintiff’s petition, that its employees and officers sold the “College Deb” line to any accounts within the territory described, other than the excluded specified accounts.

The initial contention asserted by defendant is that the trial court erred in admitting parol evidence to prove certain terms of the employment contract, which evidence it contends was at variance with the terms of the written contract. It is the position of defendant that the letter written by plaintiff on November 14, 1953, addressed to the defendant for the attention of Mr. Bennett Frelich, resulted in a written contract of employment. It further asserts that in place of an oral contract of employment that existed before the letter was written, because of the writing of the letter, “a written contract sprang into being.”

Before discussing this initial contention of defendant, it will be helpful to a better understanding of this and other contentions made by defendant if the. background history and events that occurred prior to and at the time of defendant’s employment by Crown Shoe Manufacturing Company are recited at this point.

Defendant Crown Shoe Manufacturing Company (hereinafter referred to as Crown) and the Selwyn Shoe Manufacturing Company (hereinafter referred to as Selwyn) are separate corporations and both are subsidiaries of Tober-Saifer Shoe Manufacturing Company (hereinafter referred to as Tober-Saifer). Bennett Fre-lich was a salesman and plant manager of Crown at the time of plaintiff’s employment and Lester Tober, son of Abraham Tober, was employed by both Tober-Saifer and Selwyn. Abraham Tober was Chairman of the Board of Tober-Saifer and all of its subsidiaries. Plaintiff’s first employment was with Selwyn where he was engaged in selling a line of shoes known as “Cangemi Coeds.” His territory consisted of Arkansas, Louisiana, Oklahoma, Texas and Mississippi and in his testimony plaintiff said he was to receive a salesman’s commission of 5% on all sales made in the five states.

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Bluebook (online)
340 S.W.2d 142, 1960 Mo. App. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bittner-v-crown-shoe-manufacturing-co-moctapp-1960.