Walden v. American Bankers' Assurance Co.

166 S.W. 1111, 183 Mo. App. 376, 1914 Mo. App. LEXIS 491

• Court: Missouri Court of Appeals
• Decided: May 5, 1914
• Status: Published

Opinion

NORTONI, J.

This is a suit on an express contract to recover a stipulated salary of $50 per week for personal services. Plaintiff recovered and defendant prosecutes the appeal. .

Defendant is an incorporated company, engaged in the business of insuring bank deposits, and it appears that plaintiff pursues the avocation of a solicitor of such insurance. On May 24, 1911, defendant employed plaintiff to represent it in the matter of soliciting applications for insurance. The contract of employment is in writing and conditioned to the effect that plaintiff agreed to devote his ‘ ‘ entire working time thereunder.” It stipulated, too, his compensation at the rate of $50 per week together with actual traveling expenses. By the concluding clause of the contract, it is provided the arrangement shall continue in effect while mutually satisfactory, with the understanding that either plaintiff or the company may terminate it by giving to the other party'thirty days’ notice by letter of a desire to do so. As before said, the petition sets out the terms of this written contract, and avers “That plaintiff since the 24th day of May, 1911, did devote all his working time to the business of defendant, and to and including the 28th day of October, 1911,” wherefore he sues for $650.

It appears from plaintiff’s evidence, for he personally so testifies, that he entered upon the employment in May and pursued it constantly until the first day of August, 1911, when he discontinued the service. Plaintiff testifies that he was paid in full for all services rendered under the contract until August first of that year, and the suit here proceeds for his agreed compensation at $50 per week from and after August first to and including October 28, 1911. Touching the matter of quitting the service on August first, the following questions directed to and answers by plaintiff appear: “Q. Well, what happened then? A. Well, I discontinued services at that time. Q. What do you mean by that? A. I mean by that, that I didn’t solicit any further in Indiana for the company. Q. For how long? A. Well, I never did after that, after the first of August.” Plaintiff further testifies that after having discontinued the performance—that is, serving defendant under his contract—on August first, he made a contract with the International Live Stock Insurance Company to sell stock for them. He pursued this for a time by soliciting applications for the stock of the International' Live Stock Insurance Company of Indianapolis on an arraxigement for commissions on sales, and on October 28, 1911, entered the employ of the American Surety Association of Peoria, Illinois, soliciting stock subscriptions for them. At no time after August first, 1911, did plaintiff perform any services for defendant here, and according to his testimony, he voluntarily discontinued such employment under 'his contract with defendant on that date because he heard of a receivership proceeding in which defendant was involved. However, it appears that, about August 14th, defendant became free from the receivership proceedings, and thereupon plaintiff offered to go about the further performance of his contract and requested instructions concerning it. Defendant did not.furnish the instructions, and plaintiff attended to the pursuit of his new employment with the International Live Stock Insurance Company. It is obvious plaintiff is not entitled to recover, and the court should have so declared, for that it conclusively appears on his own statement that he voluntarily abandoned the contract of employment.

It is true the contract stipulates for thirty days’ notice to be given by either party to the other, with a view of its discontinuance, and considerable stress is laid upon this requirement because no such notice was ever given by either party. But obviously this provision may not be invoked by plaintiff if it appears, as it does, that he abandoned the contract, for by so doing, he is estopped with respect of that matter because of his breach of it in voluntarily quitting the service without notice to defendant. One may not avail himself of benefits accruing from his own wrong. The suit proceeds to recover, as before stated, on an express contract involving personal services. There can be no doubt that one who sues upon a contract for personal services must show that the services have been fully performed, or that their performance has been prevented by the act of God or the unwarranted act of his employer. In ease of an abandonment of the contract by a servant or employee, there can be no apportionment of the contract. Such, it is said, has always been the rule at common law both as to menial services and services in the nature of a bailment locatio operis faciendi. [Gruetzner v. Aude Fur. Co., 28 Mo. App. 263, 266; Paul v. Minneapolis, etc. Co., 87 Mo. App. 647; Stroeh v. McClintock, 128 Mo. App. 368, 107 S. W. 416; Earp v. Tyler, 73 Mo. 617; Banse v. Tate, 62 Mo. App. 150.] In the two cases last cited, it is said the only exception .to the general rule above stated, which obtains in this State, is in cases relating to building contracts, as is illustrated in Haysler v. Owen, 61 Mo. 270. [See, also, Teats v. Ballentine, 56 Mo. 530.]

Here, plaintiff says he, of his own volition, discontinued the employment and service of defendant upon hearing of the receivership proceedings on August first and procured employment with another company on a commission basis. It is true, upon learning that defendant had survived the receivership, plaintiff proffered his services to it on August 14th and requested instructions as to what to do. No instructions were ever issued to plaintiff, and he says he performed no service for defendant thereafter. In this sriit plaintiff seeks to recover for the two weeks’ time intervening between August first and August fourteenth as well as for all of the time thereafter until and including October 28,1911, and, indeed, by the finding and judgment appealed from, lie is awarded the contract salary of $50 per week for all of this time. It is not only clear that he may hot be so compensated in the circumstances of the case, but it is equally clear that he may not recover in any amount, for manifestly he abandoned the contract of his own accord, in that he embarked upon another employment and made no proffer to serve defendant from August first to August fourteenth, whereas his contract required that he should devote his entire time to the service of defendant.

Touching the receivership, nothing appears save that a controversy existed among the officers of defendant, and a receiver was appointed, who seems to have continued for but a short time and was discharged about August fourteenth. However, there is no suggestion that defendant was insolvent at the time, or that it became so thereafter. The mere fact of the receivership did not operate a rescission of the contract on the part of defendant so as to enable plaintiff to abandon its further performance, as he did on August first, and thereafter sue thereon as for a breach because defendant neglected to instruct him to commence work again after the receiver was discharged. [See Bird v. Austin, 40 Super. (N. Y.) J. & S. 109. See, also, Smith on Receivership, Sec. 17, page 51; Cox v. Volkert, 86 Mo. 505.] Especially is this true in view of the fact it appears plaintiff entered the employ of another.

The judgment should be reversed. It is so ordered.

Reynolds,,P. J., and Allen, J., concur.