CASTLE, Circuit Judge.
The defendant-appellant, Bank Building and Equipment Corporation of America,
The main issues precipitated by Bank Building's appeal are whether, as a matter of law, the provisions of a compensation agreement relating to plaintiff's employment
The record discloses that Bank Building engages in the business of furnishing architectural and consulting services, of acting as a general contractor, and of acting as a supplier of fixtures and equipment, in connection with the construction or remodeling of the facilities of banks and other financial institutions. It maintains a large staff consisting of executives sales analysts or salesmen, architects, designers, cost estimators, decorators and others. On February 28, 1956, it employed plaintiff as a sales analyst or salesman-representative to sell its services and negotiate and have executed architectural, building and fixture contracts. The employment was for no fixed duration. A compensation agreement executed by the parties provided for regular semi-monthly payments or advancements of $208.00 to the plaintiff to be charged against commissions earned by him under the terms of a schedule
In the summer of 1956 plaintiff represented Bank Building in preliminary consultations and the signing of consultant and architectural agreements in connection with a drive-in facility for the American National Bank of St. Paul, St. Paul, Minnesota. Negotiations and consultations with American continued and were expanded to encompass either the erection of a new bank building or the remodeling of its existing building. In May of 1957, Bank Building in response
The plaintiff was discharged effective August 15, 1958. On the American job, the plaintiff received commission credit covering the architectural and building contracts on the drive-in facility, and on the preliminary architectural work for building remodeling. On the Bell job, plaintiff received commission credit on the preliminary architectural work. The $39,000.00 awarded by the jury's verdict, and in the judgment entered on the verdict, does not exceed a salesman's commission, computed according to the governing schedule, on the work authorized and contracts entered into on these two projects subsequent to plaintiff's discharge. Such work included the balance of the architectural work and the building and fixture contracts on the American project, and the balance of the architectural work and the building contract on the Bell project.
Appellant contends that the provisions of the compensation agreement quoted supra limit the plaintiff's right to commission in event of his leaving its employ "at the request of the company" and that he has been fully compensated or credited under the standards expressly set forth in the agreement which limit such commissions to work under contract or client authorization "at the time of separation". Appellant contends, in substance, that the express provisions of the compensation agreement must be literally applied and that, as a matter of law, it is of no consequence whether the discharge of the plaintiff was without cause, in bad faith, and for the purpose of depriving him of the commissions which would accrue on formal authorization of the balance of the work contemplated, with reasonable certainty, on the two projects.
The court, of course, was without power to remake or alter the contract of the parties. We are of the opinion that it did not do so, but in its rulings and instructions merely determined that the contract limitations did not apply to the situation presented by the evidence. And we perceive no error in that determination. Although the contract language evinces a meeting of the minds of the parties as to the commissions to be paid or credited in the event plaintiff voluntarily left the employ of the company or was discharged for cause it can hardly be assumed from the language employed that a bad faith discharge, without cause, and for the purpose of depriving plaintiff of commissions reasonably certain to accrue to him, was within the mutual contemplation of the parties.
The effect of an express provision authorizing a discharge without cause has been recognized by the jurisdiction (Missouri) whose law as to substantive matters it is agreed must be applied in this case. Croskey v. Kroger Co., Mo.App., 259 S.W.2d 408, 412; Spencer v. General Electric Company, 8 Cir., 243 F.2d 934. But we are of the view that in the absence of such a provision there is no basis, in the instant case, for rejecting the general principle which implies a requirement that a principal
And, although there are factors which serve to distinguish Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624 and Glover v. Henderson, 120 Mo. 367, 25 S.W. 175, from the precise situation here involved, these decisions, relied upon by the plaintiff, do represent in effect a recognition and application of the "good faith and fair dealing" principle by the Missouri courts in situations somewhat similar to that here involved albeit the factual situations presented did not admit of relief identical to that granted in the instant action. The rationale of those decisions in our judgment requires application of the "good faith and fair dealing" doctrine here. See also: Fargo Glass & Paint Co. v. Globe American Corporation, 7 Cir., 161 F.2d 811.
We conclude that the District Court did not err in the legal criteria it applied in denying appellant's motions for directed verdict and in the giving and refusing of instructions. It is our further conclusion that on the record before us the factual considerations involved in the resolution of the questions as to whether cause existed for plaintiff's discharge, whether at the time of his separation it was reasonably certain that Bank Building would receive the contracts and authorizations for the balance of the work on the American and Bell projects, and whether plaintiff's employment was terminated in bad faith in an attempt to deprive him of commissions to accrue on the remaining work, were all for resolution by the jury. And there is substantial support in the record for the conclusions on these factual issues which are implicit in the jury's verdict. We see no purpose to be gained by detailing that evidence here.
We have considered appellant's contention that the court erred in admitting in evidence, over appellant's objection, a report of appellant's district sales manager dated June 19, 1958, summarizing an interview with Bell's vice-president in which the latter is reported to have expressed Bell's desire that Bank Building do the entire job. The report was admissible on the issue of Bank Building's belief as to whether it was reasonably certain to receive the additional and remaining work on the project albeit it expressed a conclusion of the district sales manager rather than a verbatim recital of the statement made by the Bell executive. Moreover, both the district sales manager and the Bell vice-president testified at the trial as to the conversation involved. Under such circumstances the admission of the exhibit in question cannot be regarded as error requiring a reversal.
The judgment order of the District Court is affirmed.
SCHNACKENBERG, Circuit Judge (dissenting).
It is axiomatic that "hard cases make bad law". Black's Law Dictionary (3rd Edn.) p. 876. In the case at bar the district court, in endeavoring to give relief to plaintiff, has probably made a new contract for the parties. Under the contract which really existed between the parties, plaintiff was entitled to commission credits on architectural services which had actually been authorized by Bell Savings and Loan Association and American National Bank of St. Paul. However the district court, by a process of interpretation, in effect extended the contractual rights of plaintiff in such a manner as to obliterate the importance of the prerequisite of authorization.