Arnold v. Railway Steel Spring Co.

G-O'ODE, J. The facts of this litigation will be found stated in the opinion delivered on the former appeal (131 Mo. App. 612). The proposition is reasserted on the present appeal that plaintiff’s employment by defendant was at will and not by the year. We held before the evidence went to prove it was by the year and adhere to the ruling; indeed, think the argument to the contrary is without force and the authorities cited to support it are not in point. In the conversation leading up' to the contract of employment, defendant’s officers said to plaintiff “about sis thousand dollars a year is as much as we want to pay for the first year;” further, one of the officers said to plaiatiff: “You will be raised as I have been right along every year after that;” he also said: “Six thousand dollars in St. Louis is better than $7500’ in New York.” The gist of the argument for defendant is, the contract was at the rate of six thousand dollars a year, but the period of the employment was not stipulated. We think the evidence not only tended to prove [455] the contrary, but conclusively proved it. Plaintiff was expected to throw up Ms residence in New York and move his family to St. Louis, and this fact is to be coupled with the foregoing statements. Plaintiff was discharged without cause in August, 1906; for his year did not expire until March 16, 1907. The arrangement made between him and defendant at the date of the discharge, was the latter should pay him five hundred dollars a month from said date to the first of January, 1907. He was paid the first five hundred dollars, but the installments due from. September to December, inclusive, were not paid on the ground plaintiff had taken employment from a competitor of defendant contrary to his agreement. This action is to recover the balance alleged to be due. On the supposition there was no contract for a definite period and defendant might discharge plaintiff when it would, its counsel argue there was no consideration for the‘promise to pay plaintiff for time subsequent to his discharge. The argument falls with its premises that the contract of employment was not by the year, for the jury found it was and we hold the evidence supports the finding. Moreover, we may say if this was not true, the right of the matter was fairly debatable and as the parties came to an accord and satisfaction, the agreement sued on had a sufficient consideration and is enforceable. An exception was taken to the exclusion of part of the deposition given by Fitzpatrick, one of defendant’s officers. The material portion of the excluded matter was a statement that Silverthorn, another officer of defendant, had told plaintiff in the conversation which resulted in the employment, the company had intended to offer plaintiff five thousand dollars a year, but to make it án inducement to him to come with the company, would pay him five hundred dollars a month, which was at the rate of six thousand dollars a year. This evidence is said to have been competent as tending to prove plaintiff’s employment was not by the [456] year, but was for an indefinite period at five hundred dollars a month or six thousand dollars a year. Likely the testimony should have been admitted; but we hold its exclusion was not reversible error; because, as said, whether plaintiff was employed by the year or not, the condition on which he relinquished his contract was an agreement by defendant to pay him five hundred dollars a month during the five months between the date of his dismissal and the .end of the year 1906 ; and as in any view of the case, the right to discharge plaintiff before March, 1907, was doubtful, this accord and satisfaction was valid. The result was in favor of the right party unless plaintiff violated a term of the second agreement, the one on which he declared. Whether he did or not was well submitted to the jury and determined in his favor. The judgment is affirmed. All concur.