
    ARNOLD, Respondent, v. RAILWAY STEEL SPRING COMPANY, Appellant.
    St. Louis Court of Appeals,
    May 12, 1908.
    CONTRACTS: Prima-Facie Case. In an action for a sum agreed to be paid tbe plaintiff by tbe defendant, in consideration of tbe defendant’s waiving his right under a contract of employment for a year, the evidence is examined and held sufficient to make out a prima-facie case, showing that plaintiff had a contract for a year and waived his rights under it, as sufficient consideration for the agreement sued on.
    Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge.
    Affirmed and remanded.
    
      John S. Leahy for appellant.
    Entire absence of evidence to prove material allegations of petition makes it the duty of the trial court to give instruction in the nature of a deniurrer. Charles v. Patch, 87 Mo. 450; Hyde v. Railway, 110 Mo. 272; Higgins v. Railway, 43 Mr. App. 547. The mere suggestion of an intention to give evidence to sustain material parts of petition is not sufficient. Noeninger v. Yogt, 88 Mo. 589; Dawling v. Allen, 6 Mo. App. 195.
    
      Carter, Collins & Jones for respondent.
   GOODE, J.

This appeal was prosecuted from án order of the court setting aside an involuntary nonsuit. The action is for four months’ salary alleged to be due plaintiff for the last third of the year 1906; that is, for the months from September to December, inclusive. The petition alleges that on and prior to September, 1906, plaintiff was in the employ of defendant under a contract for the year from March 15, 1906, as sales agent in St. Louis and territory tributary thereto and as manager of the business office of the defendant in said city; that plaintiff’s salary Avas $6,000 per annum, payable in equal monthly installments; that on August 2, 1906, at the request of defendant, the parties entered into an agreement by AYhich, in consideration of plaintiff’s waiving his rights under said yearly contract of employment and relinquishing his employment without notice, defendant undertook and agreed to pay him the sum of $2,500 in installments of $500 each, payable at the end of each month from August first to December 31, 1906; that pursuant to said agreement plaintiff waived and relinquished all his rights under the yearly contract of employment and defendant thereafter paid him the first installment, to-wit, $500, on August 31, 1906, but refused, to pay the subsequent installments; wherefore plaintiff prayed judgment for $2,500. The answer admitted it employed plaintiff in March, 1906, as sales agent, specifically denied the employment was a yearly one, and averred it was an employment from month to month at a salary of $500 a month. For further answer defendant stated that in March, 1906, it terminated plaintiff’s employment and afterwards plaintiff represented he was in financial difficulty, would be unable to procure employment for some months and requested defendant to assist him; whereupon defendant agreed to pay him $500 a month up to and including December 31, 1906, provided plaintiff did not enter the service of a competitor of defendant or any person or corporation engaged in any business similar to defendant’s; that defendant paid plaintiff on August 31, 1906, $500, but shortly afterwards ascertained plaintiff was in the employ of its principal competitor and was doing all he could to take away business from it; whereupon defendant notified him he would receive no further remuneration. The answer further averred defendant was ignorant of the fact that plaintiff was representing a rival business concern when it paid tfie first installment of salary on August 31, 1906, and under the terms of the agreement between' plaintiff and defendant, the former was not entitled to said installment and judgment was prayed for it by way of counterclaim. In reply plaintiff admitted defendant agreed to pay him $500 á month up to and including December, 1906, but denied the consideration for said agreement was, as alleged in plaintiff’s petition (sic, but clearly meaning defendant’s answer) and averred the same was an absolute and unconditioned promise to pay; denied also every other allegation contained in the answer/ It will be seen from the foregoing statement of the pleadings that practically only two issues were raised; whether plaintiff’s employment was by the year, and whether the agreement by defendant to pay him a salary during the remainder of the year 1906, after his discharge in August, was based on a promise by plaintiff not to accept employment from any business competitor of defendant. That plaintiff was employed by defendant at a salary which would amount to $6,000 a year, was discharged August, 1906, and defendant agreed to pay his salary for the remainder of the year, are facts admitted by the pleadings. The only witness who testified was plaintiff himself; but in connection with his testimony a letter he had written to one of the officers of the defendant company in New York, was put in evidence. Just what business defendant company is engaged in is nowhere clearly stated, but we surmise it is the sale of springs,, flanges, tires and similar steel products. Plaintiff testified that prior to March 15, 1905, he represented the Latrobe Steel Company as sales agent in New York. About March 12, 1905, he received a telephone communication from one of the officers of the defendant company to come to their office. He went there and was introduced to Mr. Fitzpatrick, one of the officials of the defendant company, by the vice-president of the company, Mr. Silverthorn, and also met others of the officials. He was informed the previous agent and representative of the company in St. Louis would he removed to New York and the officers desired plaintiff to take his place in St. Louis. A talk about salary ensued, plaintiff insisting he ought to receive $7,500 a year to give up the position he held and move to St. Louis. The officers of the company said they thought $6,000 a year would be about right, and after negotiating for several days, a contract was made, fixing the salary at the sum last stated. Plaintiff came to St. Louis and represented the company through the first year and until August 2, 1906, of the second year; that is to say, his first year’s employment expired on March 16, 1906, but he was continued in service without any discussion. In August, 1906, Fitzpatrick, one of the officers of- the company, appeared in St. Louis and notified plaintiff his services would no longer be required, but he would he replaced by another representative. Fitzpatrick said the company would pay plaintiff’s salary to January, 1907. It should be stated plaintiff did not move his family to St. Louis until the end of the first year. Plaintiff was surprised and perturbed by his discharge, of which he could elicit no explanation. He insisted his salary ought to be paid to the end of the second year; that is, until March 15, 1907, and on the suggestion of Fitzpatrick, wrote Silver-thorn, the vice-president, a letter to that effect, saying he appreciated the promise of the company to pay his salary to the first of January, but felt, under the circumstances, he should be retained until the end of the second year. This matter was again taken up shortly afterwards when plaintiff was in New York City, but the officers of the company adhered to their resolution not to pay him beyond January. He was paid $500 August 81st,' and not long afterwards, while at luncheon in the Mercantile Club, met Fitzpatrick, who taxed him with representing a business competitor and said no more salary would be paid him. Plaintiff testified positively there was no agreement he should not engage his services to a business competitor of the defendant as the condition on which his salary was to-be paid for the remainder of the year, 1906; but that the agreement to continue his salary accompanied the notice of discharge, and he was then told to leave his address with Fitzpatrick, and his salary would be sent him to January 1,1907. At the conclusion of plaintiff’s, testimony, the court directed the jury to return a verdict for defendant; whereupon plaintiff’s counsel took a nonsuit with leave to move to set aside, which motion was subsequently made and sustained.

It is contended for defendant the evidence introduced has no tendency to prove a contract for yearly employment from March 15,1906, as alleged in the petition, and hence a promise by the company to pay plaintiff for the last five months of that year was made“ without consideration. It is argued that plaintiff nowhere-testified defendant agreed to give him $6,000 a year for-his services, but merely that the officers of the company said $6,000 was as much as they wanted to pay and plaintiff accepted the proposition. It is further argued that this testimony does not prove a definite contract of employment by the year, but one which could as well be by the day, week or month. One reading the testimony for-plaintiff can hardly imagine how it is possible to conclude his testimony has no tendency to prove an employment by the year. It tended to prove that and nothing else and by. every kind of inference does prove it. This was all the testimony introduced, and unless it is to be ignored, plaintiff made a prima-facie case by proving an employment by the year and an agreement between defendant and himself when he was discharged, that his salary should go on until the end of the year 1906. As, to the contention of defendant that plaintiff agreed not. to represent any business competitor in consideration of receiving salary after he was discharged, we simply say there is no evidence whatever to prove such an agreement, which plaintiff positively denied.

The order for new trial is affirmed and the cause remanded.

All concur.  