Gale v. J. Kennard & Sons Carpet Co.

ALLEN, J. This is an action to recover the sum of $2050 and interest, claimed to be the balance due plaintiff for services rendered the defendant corporation in the capacity of manager of a “department” of defendant’s mercantile business, conducted in the city of St. Louis. A trial before the court and a jury resulted in a verdict and judgment for plaintiff for the amount of his claim, and the case is here upon defendant’s appeal. The petition contains two counts. The first of these is based upon an alleged express contract of employment for a term of one year from December 1, 1909 to November 30, 1910, at a salary of $7800 per year, plaintiff averring that he had fully performed the duties required of him under such contract, and that he had been paid the sum of $6500 by defendant on account thereof, leaving a balance of $1300' due thereon. The second count is upon quantum meruit for services alleged to have been rendered by plaintiff, at defendant’s special instance and request, during the period beginning December 1, 1910, and ending April 30, 1911. Plaintiff avers that such services were reasonably worth the sum of $3250, which sum defendant promised to pay plaintiff; that defendant paid plaintiff on account thereof the sum of $2500’, leaving a balance of $750 claimed to be due. The answer to the first count admits that plaintiff was employed by defendant, in connection with the department of defendant’s business referred to in the petition, from December 1,1909, to November 30,1910, but denies that there was any contract to pay plaintiff $7800 per year, denies that any balance is due plaintiff, and avers that defendant paid plaintiff $6500 for his services, that the said sum was in full payment — 506 — therefor, and that it was so received and accepted by plaintiff. The answer to the second count admits that plaintiff rendered services to defendant from December 1, 1910 to April 30', 1911, but denies that such services were reasonably worth the sum of $3250 or anything in excess of $2500i, denies that defendant promised to pay plaintiff therefor the sum of $3250 or anything in excess of $2500, and avers that the sum of $2500l/was paid by defendant to plaintiff in full payment therefor, which was so received and accepted by- plaintiff. The reply is a general denial of the new matter contained in the answer. The evidence discloses that plaintiff entered defendant’s employ on September 1, 1901, under a contract evidenced by a letter written by plaintiff to ’ defend ant and the latter’s written acceptance of the terms of the proposal therein contained. The contract thus entered into provided that plaintiff was to take charge of and conduct the department of gas and electric fixtures, lamps, etc., in defendant’s business for a term of five years, beginning on said September 1, 1901; that plaintiff was to receive a salary of $3500 per year, payable weekly, and, in addition thereto one-fourth of the net profits of the business of the department, payable annually, after deducting from the gross profits thereof all the expenses of the department including plaintiff’s salary, the department’s pro rata share of the general expenses of defendant’s business and six per cent annual interest on all capital employed in the department. It appears that the. parties operated under this contract for more than four years, but not for the full term thereof. Plaintiff testified that he received thereunder from $7200' to $7800 per year, though defendant’s secretary, testifying froru memoranda, stated plaintiff’s average earnings during this period amounted to $7016.66 per year. — 507 — A new contract was entered into under date of January 9, 1906, to cover the period from December 1, 1905, to November 30', 1906.‘ This contract provided for salary and commissions, stating that plaintiff was to receive $100' per week, $500’ additional at the end of each period of three months (a total of $7200 per year), and in addition thereto five per cent on all sales in his department in excess of $100,000'. After the execution of the contract defendant’s president personally guaranteed that plaintiff’s commissions together with his salary would amount to not less than $7800 for the year covered by the contract. It appears that under this contract, plaintiff received for the year $8310.27. The next contract between the parties was under date of February 14, 1907, for the year beginning December 1,1906, and ending November 30', 1907. It likewise provided that plaintiff would receive $100 per week and $500 quarterly, totaling $7200' per year. In addition thereto plaintiff was to receive five per cent commission on all sales ip his department over and above the amount of such sales required to pay the expenses of the department, setting forth in detail the items of expense to be charged against the department. Such commission was to be paid at the end of the year, and defendant guaranteed that it would not he less than $600, making plaintiff’s total compensation at least $7800 for the year. The next contract between plaintiff and defendant, of date February 12, 1908, and which covered the period from December 1, 1907, to November 30, 1908, was identical in terms with the contract for the immediately preceding year, except as to certain provisions relating to the items of expense to he charged against the department. It appears that no commissions were earned in this department during these two years, i. e., from' December 1, 1906, to November 30, 1908, nor during any of the subsequent period with which we — 508 — are here concerned. Plaintiff, however, for the two years last mentioned, received payments aggregating $7800 per year, in accordance with the said contracts. The next contract bore date January 21, 1909, and related to the year beginning December 1, 1908, and ending November 30, 1909, the year immediately preceding that covered by the first count of plaintiff’s petition. . It provided that plaintiff should receive twenty-five per cent of the net profits of his department, the expenses, thereof to be arrived at in the manner as provided in the contract for the preceding year; that plaintiff would “be permitted to draw” $125 per week, aggregating $6500' for the year, which was to be deducted from the profits of the department, plaintiff to receive one-fourth of the remainder of such profits. It further provided that should the department show a loss during the year the same would be charged to profit and loss, it being defendant’s intention to guarantee plaintiff $6500' as compensation for the year. It appears that plaintiff accepted the contract last above mentioned, reducing his guaranteed compensation from $7800' to $6500' for the year, after having been told by defendant’s president that plaintiff’s department had shown a loss, and plaintiff testified that defendant’s president stated that all other employees of defendant had suffered a reduction in compensation for the preceding year on account of business depression, and that as plaintiff had received the full amount guaranteed to him for the preceding year he ought to accept less, as a “guarantee,” for the year covered by this.contract; and that plaintiff thereupon agreed to accept a minimum of, $6500'. Each of the above-mentioned contracts, with the exception of the first, as indicated above, were in the form of a letter or written proposal by defendant to plaintiff, signed by defendant’s president and which plaintiff signed signifying his acceptance of the terms thereof. — 509 — For the next year, from December 1, 1909, to November 30, 1910', the year covered by the first count of plaintiff’s petition, there was no such written contract. Plaintiff continued in defendant’s employ, during such year, and until April 30, 1911, being paid $125 per week, or $6500 per year; and his claim to further compensation is based upon a letter written by him to defendant’s president, constituting, as is claimed, a proposal, and which is said to have been orally accepted by defendant’s president with a certain modification. It appears that matters of this sort were attended to personally by Mr. Kennard, defendant’s president, who, it seems, was unwell and seldom at defendant’s store during the latter part of 1909 and the early part of 1910. On November 5, 1909, plaintiff mailed to Mr. Kennard, at the latter’s home in the city of St. Louis, the following letter: “Mr. Sam Kennard, St. Louis, Mo. “My Dear Mr. Kennard: “Permit me to express my sincere and deep regret for your temporary illness and the conditions which force me to write you what otheiwise I should have preferred to discuss personally. It is furthermost from my wishes to cause you a moment’s anxiety. However, in justice to the company and to me, I see no way, other than to write this letter. “My contract expires November 30th. Should you desire to renew it, I trust you will appreciate the injustice — the impossibility — of my again accepting less guarantee than I have had in years past.* With my knowledge of this business, it is not sufficient that I make from it merely a living. ‘ ‘ Should my suggestion be incompatible with your plans, it is better for my interests that I be apprised — 510 — of it at onoe, in order that I may make a change now, rather than later. “On the other hand, should this contract be renewed I want to feel closer allied — not only to the fifth floor, but to the general interest of the business — to feel that I am a fixture of more than twelve months’ standing. I want you to know that you may depend upon my loyalty to your best interests and thorough co-operation with any policy your judgment may see fit to adopt — or be adopted by anyone acting in your absence. “Trusting you will give this your early consideration, I remain, with'sincere wishes for your speedy recovery, and return to activity, Most truly yours, Spencer. H. Gale. ’ ’ Plaintiff received nó reply to this letter. Some time during the following month, viz., December, 1909, plaintiff had an interview with Mr. Kennard, at the latter’s home, having arranged therefor -by telephone. Plaintiff testified: “I went out, saw Mr. Kennard; after passing the usual remarks on the day, I said, ‘What about my letter?’ He produced the letter; he says: ‘What do you mean by this clause, “closer allied?” ’ I said, ‘I mean what I say. I want to be closer allied with you. All the talk was from year to year, because you understand me, but if you have a successor, I want a contract based on the terms of my previous contract for a period long .enough for me to demonstrate to your successor that I will cooperate with him, as thoroughly as I have with you. I want you to understand that’s the way I feel. I want you to so state it to your successor.’ Mr. Keunard said, ‘Very well, Mr. Gale. I will consider this and let you know. ’ ’ ’ Mr. Kennard testified that he had no recollection of receiving the letter or of the conversation referred — 511 — to, but that he did recall the use of the words “closer allied” by plaintiff on some occasion. He testified that plaintiff came to see him, at Ms home, some time in December, 1909, or January, 1910, at which time they discussed conditions in plaintiff’s “department;” that he then told plaintiff that the business was unsatisfactory and that he would decline to continue the department “along the lines it had been running;” and that they discussed the reduction of stock, the “closing out” of certain “departments,” and working along on that plan for six months or a year. Plaintiff testified that after the interview in December, relative to his letter, he waited for an opportunity to see Mr. Kennard, and finally saw him on the fifth floor of defendant’s store, where plaintiff’s department was located; that after going through the department with Mr. Kennard, discussing other matters, he said: ‘ ‘ Mr. Kennard, what about my letter ? ”; that Mr. Kennard turned to him and said: “Mr. Gale, we will.accept that for one year; that is all right;” that plaintiff thereupon said: “What about the contract?” to wMch Mr. Kennard replied: “Oh that can be drawn up at any time.” Plaintiff’s testimony as to this conversation is corroborated b.y that of a Miss Smith, then a stenographer in plaintiff’s department of defendant’s store, and who was still in defendant’s employ at the time of the trial below, and by that of a Mr. Burch, then employed in the same department. Miss Smith stated that she heard Mr. Kennard say, “That’s all right;” that plaintiff then said something about having a contract drawn up, and that Mr. Kennard said: “That can be done at any time.” Mr. Burch testified that he overheard the conversation, and related what was said, closely corroborating plaintiff’s version thereof. It appears that, following the conversation, plaintiff asked this witness whether he had overheard the same, and, upon learning — 512 — that he had, asked the witness to remember it; and that plaintiff had afterwards spoken to the witness in regard to the conversation in question. Mr. Kennard testified that he did not recall having: 'had any such conversation. Plaintiff further testified that after the conversation said to have occurred in February, 1910, plaintiff endeavored to see Mr. Kennard with reference to the execution of a written contract, and had several engagements with him, which the latter did not keep; that plaintiff went to Mr. Kennard’s home on the evening before the latter left for his country home at Magnolia, Mass. On direct examination, plaintiff testified, as to this interview, that Mr. Kennard was quite ill, and that many people were present, saying .further: “His son, John Burton, was there. We discussed my contract, but there was no way to draw it up, if I wanted it; I had to be satisfied with my verbal agreement.” Whether by this plaintiff meant to say that he discussed the contract with Mr. Kennard or the latter’s son is not clear. On cross-examination he said that he did not mention the contract to Mr. Kennard at this time, because the latter was a very sick man and nervous; that plaintiff saw him but a few minutes, when no stenographer was at hand, and could not well mention the matter. Mr. Kennard remained away during the summer, and on June 18, of the same year, plaintiff wrote to him at Magnolia, Mass., as follows: “Mr. S. M. Kennard, Magnolia, Mass. “My Dear Mr. Kennard: “You know how little I have seen you to discuss the conditions of the fifth floor. I fully appreciated how your time was occupied before you left, but I felt it was my duty to have an interview with you on cer — 513 — tain business, but I conld not, under tbe conditions, ask you to discuss my personal affairs. “Now tbat you have absolute rest, and as tbe matter is of so slight importance to you, I would remind you tbat you bave never given me a written renewal of my contract, although you assured me verbally tbat tbe terms of my letter, dated November '5th, were accepted, and tbe same could be signed at any time. "Will you kindly "send me an acknowledgment to tbis effect? And under tbe terms of same, there is due me June 1st, $650. Will you request Mr. LeBerge to give me a check? “I wrote you in my previous communication regarding my future with you, and, as it expresses my views fully, I beg to refer you to tbe same, copy of which I enclose. I want to feel closer allied to your company than is possible with a contract for one year, and I bave been with you long enough for you to know whether or not you wish to renew our contract for a period of years, as was our former custom. “Wishing you and your family a pleasant summer and one tbat may be in every way beneficial to your health, I beg to ask for an early reply and to remain, “Very sincerely yours, Spencer H. Gale,” Tbis letter was never answered, though plaintiff testified tbat Mr. Kennard’s son said tbat be bad been asked by letter to say to plaintiff tbat Mir. Kennard would answer plaintiff’s letter as soon as" a stenographer could be bad. In August of tbe same year, plaintiff, being in Boston on a business trip, went to see Mr. Kennard at Magnolia, Mass, and bad a brief interview with him respecting matters connected with plaintiff’s department, during which no mention was made of tbe contract. During tbis summer other let — 514 — ters were written by plaintiff to defendant’s president respecting plaintiff’s department, bnt making no further mention of the contract. Plaintiff testified that after writing the letter of June 18, 1910, and waiting some time for an answer, he asked defendant’s cashier if the latter had a check for him, and made the same inquiry later, but that the cashier had nothing for him. Mr. Kennard returned to St. Louis in September or October, 1910, and, it seems, was at defendant’s store nearly every day thereafter during the period here in question. Plaintiff saw him frequently, but made no further mention of his contract. Plaintiff, during the period mentioned in his petition, signed receipts for the weekly payments made him, each receipt stating that the amount so paid was “in full for salary to date.” It appears that such receipts had been signed by plaintiff for the weekly payments made him during1 previous years. Plaintiff was discharged on April 30,1911, having been given thirty days prior fio tice thereof. Upon quitting defendant’s employ, he demanded the additional compensation claimed to be due him, which defendant declined to pay. We have set out the facts in considerable detail, as such appears necessary to an understandinig of the case made, and appellant’s contentions with respect thereto; but the questions of law involved appear to be elementary. Indeed, there seems to be no room for serious controversy respecting the fundamental principles of the law of contracts applicable to the situation in hand. Learned counsel for appellant insists that appellant’s demurrer to the evidence should have been sustained. And in support of this contention it is urged that plaintiff’s letter of November 5, 1909, upon which plaintiff’s case rests, was so indefinite and uncertain as an offer that no contract would result from its acceptance. It is quite true that an offer must be com — 515 — píete in itself, and reasonably certain and definite as to tbe terms of the proposed agreement, in order for its acceptance to create a valid contract. This is elementary, for if an offer is incomplete or so uncertain and indefinite as to leave essential terms of tbe proposed contract in doubt, though there be an acceptance thereof, there can be no meeting of the minds, and hence no binding contract. [See 9 Cyc. 248, 249; 1 Page on Contracts, Sec. 27; Elliott on Contracts, Sec. 27; Stone v. Union Trust Co., 150 Mo. App. 331, 130 S. W. 825.] Numerous authorities might be cited on this question, but to do so is altogether unnecessary; for surely no one may dispute the correctness of the principle thus asserted by appellant. The only question in this connection is whether plaintiff’s letter of November 5,1909, is sufficiently complete and certain and definite, as an offer, that its acceptance by the defendant for a period of one year would constitute a binding contract between the parties, within the meaning of the principle to which we have referred above. Appellant’s contention is, that it is insufficient for the reason that it makes no reference to the manner in which plaintiff’s compensation is to be determined, as did the contracts previously had between plaintiff and defendant ; that under the first contract between the parties plaintiff was to receive one-fourth of the net profits of the business of his department; that under the next contract he was to receive five per cent on all sales in his department in excess of one hundred thousand dollars ; that under the contract for the next two years he was to receive five per cent commission on sales over and above the amount thereof required to pay the expenses of his department; and that under the contract for the following year, that preceding the one here in question, he was to receive twenty-five per cent of the net profits of his department; and that it is impossible to tell what was the basis proposed for — 516 — reckoning plaintiff’s compensation for the year in dispute, in case it should exceed the amount claimed to be assured or guaranteed to him. While it is quite true that plaintiff had worked for defendant under these several different contracts, we think that appellant’s position is not tenable with respect to the matter under discussion. At the time that plaintiff’s said letter was written, he had a contract with defendant whereby he was to be paid $6500, in weekly installments. He was to receive one-fourth of the net profits of his department, after deducting his salary and all other expenses, such other expenses to be arrived at in the manner provided in the contract for the preceding year. In case there were such net profits he was to share in them to the extent above mentioned, but was to receive in any event no less than $6500. His letter to defendant’s president refers to his then existing contract, stating that it is about to expire, and saying: “Should you desire to renew it I trust you will appreciate the injustice — the impossibility — of my again accepting less guarantee than I have had in years past.” Prom this it clearly appears that plaintiff directly referred to his contract then in force for the year which had then nearly expired. He spoke of renewing it, i. e., the contract under which he was then employed, but with one change or modification, viz., that he could not accept less “guarantee” than he had had “in years past.” The word “guarantee” referred to the amount of plaintiff’s assured compensation. It is quite clear that ■ the parties did not use this term in the sense of a legal guaranty. The previous contracts had all provided for a certain minimum which plaintiff should in any event receive. Under the first contract, which was in force for more than four years-, the amount of plaintiff’s assured compensation was $3500', though he received much more. Under the contract for the next year it was $7800-, defendant’s president personally guaranteeing $600 — 517 — thereof. And under the contracts for the next two years it was likewise $7800, defendant company agreeing to pay plaintiff at least that much per year. For the next year, immediately preceding that here in question, it was $6500. It thus quité clearly appears that plaintiff’s letter was intended to constitute an offer to renew the existing contract, with its various terms and provisions, with the exception of the amount guaranteed him as compensation, and that as to the latter he was unwilling that it remain at $6500, as provided in the then existing contract, but insisted that it be the amount which he had received during the three previous years, viz., $7800. It is clear that plaintiff desired to enter into a contract for a longer period than one year; but, according to plaintiff’s evidence, this did not meet with the approval of defendant’s president, and the latter orally accepted plaintiff’s proposition for one year. And plaintiff’s evidence goes to show that he, plaintiff, acceded to this. It would thus appear that, if plaintiff’s evidence be true with respect to these matters, then there was a meeting of the minds of th'e parties as to the terms of the contract. In this connection it is also urged that the letter leaves the matter wholly in doubt as to what is meant by the language therein contained to the effect that plaintiff could not again accept a less “.guarantee” than he had had “in years past,” for the reason that “in years past” plaintiff’s guaranteed compensation had varied under the different contracts. It is true that plaintiff had been guaranteed $3500 during the first period of more than four years, and $7800' during the next three years. Plaintiff, however, was, by this letter, complaining of the amount of his “guarantee” under the contract then in force, which was $6500, claiming that it was too small. And in his letter he could not have had reference to the “guarantee” of $3500 under the first contract, but to that of $7800' — 518 — under the contracts for the three immediately preceding years. It seems quite clear therefore that there is no ambiguity or uncertainty in the letter with respect to this question. It is also urged that the letter shows upon its face that it was but a preliminary step in negotiations intended to lead up to a formal proposal; that in 'the letter itself plaintiff refers to what is said as being his “suggestion;” and that in the letter of June 18, 1910, plaintiff refers to the former letter as expressing his “views.” We think, however, that there is no merit in this contention, for, when taken as a whole, the letter in question appears to be sufficient as the basis of a contract, provided the minds of the parties met with respect to the subject-matter, as plaintiff’s evidence tended to show. It is true that it fully appears that plaintiff contemplated and desired that a written contract be prepared and executed; but, according to his evidence, defendant’s president said that the written contract could be drawn up at any time. The fact that such written contract was not actually executed, but the preparation and signing thereof left to a future time, does not invalidate the contract entered into in the manner aforesaid; for it is well settled that where parties have agreed to the terms of a contract, the mere fact that reference is made to the future execution of a contract in writing does not negative the existence of a present contract. [See Concannon v. Mining etc., Co., 156 Mo. App. 79, 135 S. W. 988; Green v. Cole, 103 Mo. App. 70, 15 S. W. 317.] It is also urged that even if the letter of November 5,1909, was sufficient to constitute a contract when unqualifiedly accepted, the evidence shows only a qualified acceptance thereof, amounting to a rejection of the offer. As this argument proceeds, the letter proposed not only a change in plaintiff’s “guarantee,” but a closer alliance to the defendant’s business, mean — 519 — ing a contract for a period longer than one year; and hence the acceptance thereof “for one year” was a rejection of the offer as made. This does not appear to us to he sound, however, for the reason that plaintiff’s evidence goes to show an acceptance of the offer, for a period of one year, to which plaintiff assented, ashing that a written contract to that effect be prepared. While it is quite clear that plaintiff at that time, and even later, desired a contract for a period of years, his evidence tends to establish a meeting of the minds of the parties with respect to a contract for one year. And in so far as this was a departure from the terms of the offer contained in the letter, such departure became immaterial when assented to by both parties. It is also urged that the undisputed facts show that the parties, by their conduct, construed the terms of plaintiff’s employment to be the same as in the year preceding that involved in the first count of plaintiff’s petition. But a careful examination of the record does not appear to bear this out. Plaintiff’s evidence is to the effect that he not only wrote the letter on November 5,1900’, and had the conversations with defendant’s president above related, but that he wrote the letter of June 18, 1910, while defendant’s president was away, calling the latter’s attention to the contract said to have been made the preceding February, and asking for some written acknowledgment to the effect that plaintiff’s contract had been thus renewed. This letter also called attention to the fact that $650 was then due plaintiff under the terms of the contract claimed to have been made, requesting defendant’s president to instruct its cashier to give plaintiff a check therefor. Though it seems that this letter was received by defendant’s president, it was never answered. It would seem from this that the latter must have known that plaintiff regarded his contract of the previous year as having been renewed with — 520 — a larger “guarantee;” fox otherwise plaintiff would have had no reason to request that a check be given bim for additional compensation, over and above his weekly payments which constituted his full compensation during the preceding year. It is true that plaintiff does not appear to have made.demands upon defendant’s president after the latter’s return in September or October, 1910', or thereafter. However, plaintiff’s year had nearly expired by the time of the return of defendant’s president, and plaintiff says, in effect, that he assumed that the matter was fully understood and would be eventually cared for. It is also true that plaintiff executed the receipts above mentioned for the weekly payments made him, but it appears that this had been customary under all of his contracts when he received additional compensation, over and above his weekly payments. These were clearly matters for the jury. It is also urged that the contract upon which plaintiff relies was in legal effect the snapping up of a bargain at a time when defendant’s president did not have in mind the terms of plaintiff’s letter, or anything else except the continuance of plaintiff in defendant’s employ, and that the contract so attempted is void. But the evidence does not appear to support this view. Plaintiff had conferred with defendant’s president, at the latter’s home, with respect to this letter; and, according to his testimony, he had been told that the matter would be given consideration. Upon bringing up the subject later, he would have every reason to suppose that the terms of the letter were clear in the mind of the defendant’s president. At any rate a jury would be warranted in so finding. “Where a proposition sufficiently clear is submitted to another to act upon, and the person to whom the proposition is submitted makes such statements or does such acts with respect thereto as are sufficient to lead an ordinarily prudent person acting in good — 521 — faith to believe that the proposition has been accepted, and the proposer proceeds to the fulfillment of the conditions and terms imposed, a jury may find a contract from such conduct.” [Northrup v. Colter, 150 Mo. App. l. c. 647, 131 S. W. 364. See also Embry v. Dry Goods Co., 127 Mo. App. 383; Brewington v. Mesker, 51 Mo. App. 348.] We think it quite clear that the lower court committed no error in overruling appellant’s demurrer to the evidence. Whatever there may have been in plaintiff’s conduct inconsistent with the making of the contract in question, was for the jury to reckon with. It does fully appear that, prior to the expiration of plaintiff’s last previous contract, he wrote the letter of November 5, 1909', making it clear that he would renew the existing contract, provided his “guarantee” was increased to ydmt ^ tad theretofore been. And he plainly stated that if this should not meet with the approval of defendant’s president, it was better that plaintiff be at once apprised of it, in order that he might make a change then rather than later. This evidenced a clear intention not to remain in defendant’s employ for the compensation he was then receiving. Defendant might have promptly dispensed with plaintiff’s services, had it desired to do so. Such was not done, however, but, on the contrary, if plaintiff’s evidence is to be believed, defendant thereafter contracted with plaintiff for such increased compensation for one year. Whatever conflict there may be in the testimony relative to the making of such contract was for the consideration of the jury, and their finding; concludes the matter here. It is also urged that the contract pleaded in the first count was for “salary,” while the contract, if any, established by the evidence,,was for a “guarantee;” and that there was hence a failure of proof as to the first count. But it is clear that, under plaintiff’s various contracts with defendant, he was assured or guar — 522 — anteed a certain compensation, in the nature of a salary, whether it was earned under these contracts or not. It was for the amount of this assured compensation that plaintiff sued in the first count of his petition; and we think that there was no failure of proof of cause of action pleaded. At most it was a mere variance of which defendant cannot now avail itself. [See Olive Street Bank of St. Louis v. G. M. Phillips, 179 Mo. App. 488, 162 S. W. 721; Fisher Co., etc., v. Realty Co., 159 Mo. 562, 62 S. W. 443 ; Rundelman v. Boiler Works Co., 178 Mo. App. 642, 161 S. W. 609.] As to the second count in plaintiff’s petition, it need only be said that upon finding that the contract above mentioned was entered into, for the year covered by the first count, and that-plaintiff’s previous contract did not continue in force, the jury were at liberty to find that plaintiff’s services for the next five months, i. e., from December 1,1910, to April 30', 1911, were reasonably worth $3250, being at the rate of $7800 per year. On behalf of plaintiff, there was evidence tending to show that such was the reasonable value of plaintiff’s services, and the finding of the jury thereupon is conclusive upon us. It is urged that error, was committed in giving an instruction for plaintiff which told the jury that if they found from the evidence that plaintiff and defendant entered into a contract whereby plaintiff was employed, etc., then, finding the other facts mentioned in the instruction, their verdict should be for plaintiff. This instruction is assailed upon the ground that the court thereby submitted a question of law to the jury. But we need not dwell upon this, for the reason that the defendant offered an instruction in this precise form and is in no position to complain of the giving of plaintiff’s said instruction. The exclusion of certain letters written by plaintiff to defendant’s president, which defendant offered in evidence, is also assigned as error. These were — 523 — evidently offered to show that plaintiff had communicated at such times with defendant’s president with respect to other matters, as tending to negative the idea that plaintiff did not have ample opportunity to have the matter of his contract definitely determined. But we are unable to see any reversible error in the court’s action in the premises. Defendant was permitted to show that such letters had been written at such times, which would appear to be sufficient for defendant’s said purpose. The contents of the letters themselves, which are preserved in the record, appear not to be material or relevant to the issues here involved, and their exclusion could not be prejudicial error. A careful examination of the entire record has convinced us that the case made was one for the jury, and that no reversible error intervened below. It follows that the judgment should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.