Stokes v. Enmark Collaborative
Stokes v. Enmark Collaborative
Opinion of the Court
Plaintiff appeals from a judgment against him based upon a jury verdict in an employment contract case. We affirm.
Plaintiff
Defendant conversed generally the verdict-directing instruction and additionally requested and received an affirmative defense instruction denying plaintiff recovery if he did not “substantially perform his promises as set forth in the written document.” This defense was based upon the statement in Rexite Casting Co. v. Midwest Mower Corp., 267 S.W.2d 327 (Mo.App. 1954) [14,15] that: “A party to a contract cannot claim its benefits where he is the first to violate it.” Plaintiff’s first attacks are leveled against the affirmative defense instruction.
Initially, plaintiff contends the instruction lacked evidentiary support because there were no material failures to perform. The Rexite statement heretofore quoted is limited to material failures of performance. Blythe v. Blythe, 586 S.W.2d 393 (Mo.App. 1979) [4]; Restatement of Contracts 2d §§ 237 and 241. Defendant points to several facets of the evidence to establish that plaintiff was in material breach of his contract with defendant, i.e.: (1) Plaintiff frequently was absent from his place of employment on Fridays and was on occasion needed on that day, (2) plaintiff refused to report for work until 9:00 a. m., (the company’s hours began at 8:00 a. m.), creating morale problems in the office, (3) plaintiff would design and recommend buildings of a non-pre-engineered steel construction contrary to defendant’s efforts to increase its business in pre-engineered steel construction, (4) plaintiff was involved in private architectural work other than previously existing contracts. There is clearly evidentiary support for the first three complaints, each of which would be sufficient to allow a jury to find a material breach by plaintiff.
Plaintiff also challenges the instruction because it failed to define the term “substantially performed.”
Plaintiff also raises as plain error the giving of a converse to the verdict directing damage instruction, which constituted the giving of an impermissible second converse. The objection was not raised at trial nor in the motion for new trial. It has not been preserved for appellate review and we decline to review it as plain error. Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7 (Mo.App. 1974) [7-9]. Plaintiff did preserve an objection that the “second converse” was an inconsistent and conflicting instruction. We fail to see how. The instruction was a true converse to plaintiff’s damage instruction. How that could make it inconsistent with a proper affirmative defense instruction, as plaintiff claims, is not apparent.
Plaintiff’s remaining points deal with evidence claimed to have been erroneously admitted. The first item relates to testimony concerning the disappearance of an employee of defendant. It was this employee to whom plaintiff testified he delivered his signed copy of the employment agreement. Defendant produced evidence that the employee had left its employment without warning and that her whereabouts were unknown. The employee left prior to plaintiff’s termination and her disappearance was common knowledge in the company. On appeal plaintiff contends that under his theory of the case, as submitted to the jury, acceptance by signing and return of the employment agreement by him was immaterial, as he was seeking recovery on the basis of the oral agreement accepted by the commencement of employment. Therefore, the testimony concerning the employee’s disappearance was irrelevant. Plaintiff’s petition, however, was not based upon the theory submitted to the jury, but rather upon breach of the written agreement. When the evidence was admitted the question of whether plaintiff had accepted the written agreement was still a viable issue in view of the petition. Defendant’s evidence was that no acceptance occurred until after plaintiff was terminated. In that posture evidence that the employee to whom plaintiff claimed he tendered his acceptance was no longer available to testify, and was known to plaintiff not to be available, was relevant in assessing the credibility of his
Plaintiff’s final point is that the trial court erred in admitting certain testimony concerning architectural fees for services comparable to those performed by plaintiff. Plaintiff had.introduced evidence that the American Institute of Architects minimum fee schedules would have produced a certain amount of revenue for the architectural division which in turn established a level of profits for that division to which plaintiff was entitled to one-third. Defendant’s evidence was that under its overall operation as a “design-build” contractor the fees which it could charge for its architectural division, for whom plaintiff was employed, were less than those standardly charged by independent architects and less than the minimum fees contained in the A.I.A. schedules. Plaintiff’s contention of irrelevance is based upon his interpretation that the written agreement mandated use of the A.I.A. standards.
Judgment affirmed.
. “Plaintiff’ as used in this opinion refers to Russell T. Stokes, Jr. During appeal Mr. Stokes died and his personal representative has been substituted as the named plaintiff.
. An exception was made for “previously existing contracts specified below.” There was nothing specified “below.”
. Specifically, plaintiffs evidence, undisputed, was that defendant paid him none of the profits and gave him no notice prior to termination. Defendant denied there were any profits. Much of the evidence at trial dealt with the profit question.
. The fourth complaint has less evidentiary support, but in view of the first three complaints, we need not decide whether it had sufficient evidentiary support.
. This challenge is curious inasmuch as plaintiffs verdict-directing instruction utilized the same phrase without definition.
. We have some doubt that plaintiff has properly raised the “plain error” contention by first addressing it in his reply brief, thereby denying defendant the opportunity to challenge its applicability. We do not decide that question.
. That provision read: “[A]ll fees will be determined by Architect and Company. A.I.A. standards and reasonable hourly rates shall be used as a basic guide. The intention is to obtain the maximum allowable, but fair fee, while not losing the contract to service the client.”
Reference
- Full Case Name
- Maxine S. STOKES, of the Estate of Russell T. Stokes v. ENMARK COLLABORATIVE, the architectural division of Emmenegger Construction, Inc., Defendant-Respondent
- Cited By
- 4 cases
- Status
- Published