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compensation per hour to be paid for plain- | period of five years commencing September tiff's services. Other provisions of the lastmentioned contract are set up which it is unnecessary to here notice.
It is alleged that, while the contract specified the number of days per week that plaintiff should be employed and should serve, and her compensation per hour, it did not specify the number of hours per day that she would be required to serve; that said contract of August 1, 1909, was entered into by the parties thereto after plaintiff had served in a similar capacity in the same institution from September, 1908, to August 1, 1909, receiving a salary of $100 per month, during which time she had been required to serve on an average of 5 hours per day, and that during the first year's operation under the contract of August 1, 1909, she was required to serve on an average of 5 hours per day for 4 days per week; that it was the custom with said conservatories of defendant, as well as of other similar institutions in the city of St. Louis and elsewhere, that instructors should serve on an average of 5 hours per day, which custom was general, notorious, and uniform among persons engaged in this character of work, and was known,' recognized, and acted upon by the parties. And it is alleged that defendant breached its contract of April 7, 1910, in that defendant failed and refused to give plaintiff employment thereunder for an average of 5 hours per day on 4 days of each week from August 15, 1910, to January 31, 1911, though plaintiff was ready, willing, and able to perform the contract on her part, but permitted plaintiff to serve during said time but 2071⁄2 hours, to plaintiff's damage in the sum of $515.
The second count of the petition alleges that during the month of February, 1911, defendant gave plaintiff employment for but 23 hours, refusing to permit plaintiff to perform further services, whereas plaintiff was entitled to be employed during said month for 10 days of five hours each at the rate of $2 per hour; and judgment is prayed on this count for $100.
The third count charges that on February 20, 1911, the defendant wrongfully refused to allow plaintiff to continue to render any further services under the contract and seeks damages in the sum of $990 for the alleged wrongful discharge of plaintiff by defendant. By the fourth count a recovery of $46 is sought for 23 hours of service rendered by plaintiff, during the month of February, 1911, at the contract price of $2 per hour.
It is unnecessary to further notice the pleadings. The evidence discloses that plaintiff was first employed by Clemens C. Strassberger, "proprietor of the Strassberger Conservatories of Music," under a written contract of date June 2, 1908, whereby plaintiff agreed to serve, as required, “on an average of at least eighteen hours, and not to ex
1, 1908, and ending August 31, 1913, with a vacation of one month each year; plaintiff to devote her exclusive time and attention to such employment. For such services plaintiff was to receive $100 per month. Plaintiff worked one year under said contract.
On August 1, 1909, the following contract was entered into between the plaintiff and Clemens Strassberger, "president of the Strassberger Conservatories of Music Company," viz.:
"This agreement made and entered into this first day of August, 1909, by and between Clemens Strassberger, president of the Strassberger Conservatories of Music Company, party of the first part, and Agnes Whitehead Lemaire, of the city of St. Louis, Missouri, party of the second part, witnesseth:
"That the said first party has employed and hereby does employ the said Agnes Whitehead Lemaire in the capacity of instructor in singie and class lessons in the vocal department at the North and South Side Conservatories of said first party in the city of St. Louis, and the said party of the second part agrees to serve the said Strassberger in said capacity about four days a week, which shall be divided into the North and South Side Conservatories, as and when required by said first party during the entire period of one year commencing September 1, 1909, and ending August 15, 1910. "For the services so to be performed by the said second party, said Strassberger agrees to pay her at the rate of one dollar and seventyfive cents ($1.75) per hour for actual service perthe Strassberger Conservatories of the city of formed by said Agnes Whitehead Lemaire at St. Louis.
"It is further agreed that said party of the second part is not allowed to teach in any other conservatory, institution, or school during the period of this agreement, but shall have the privilege to teach some pupils of her own, in her own studio or pupils' residences, as long as it don't interfere with her duties at said conservatories as above agreed in this agreement.
"It is also agreed that when requested by the shall participate in teacher recitals, annual exfirst party that the party of the second part amination, or assist in such recitals in which any of her pupils participate, such time shall be served by the party of the second part without any further compensation.
"It is also agreed by the party of the first part that said Agnes Whitehead Lemaire is released of all duties mentioned and agreed to. day of June, 1908, and that said agreement is in the agreement made and entered into the 2d called void, and that both parties have agreed to acknowledge this agreement, which shall be in force from the first day of September, 1909. "It is further agreed that all negotiations for a renewal of this contract or for the continuation of the services of the said A. Whitehead Lemaire after the expiration hereof, shall take place on or before February 1, 1910."
Plaintiff served under this contract for a period of one year. On April 17, 1910, the following was indorsed upon the contract of August 1, 1909, signed by plaintiff and defendant corporation, viz.:
Strassberger and Agnes Whitehead Lemaire, "The foregoing contract between Clemens which expires on the 15th day of August, 1910, is hereby continued for the period of one year 1910. It is clearly understood, however, that from and after the said 15th day of August, the contracting parties shall be the Strassberg
hand, and Agnes Whitehead Lemaire on the other. This contract shall in all particulars be a continuation of the foregoing one and identical with the same, with only this exception: That for the term beginning on the 15th day of August, 1910, Agnes Whitehead Lemaire shall receive for actual services performed two ($2.00) dollars per hour."
company. Under your contract it is your duty to attend at the South Side Conservatory at 9 o'clock a. m. tomorrow, Tuesday morning, and if you fail to appear there is nothing left to our client but to turn over the scholars that you ought to instruct to another instructor."
Plaintiff admits that she failed to appear for duty on Tuesday, February 21, 1911, stating that she absented herself in order to consult counsel. It appears that, without authority, she telephoned, so far as possible,
Under this contract, of date April 17, 1910, which covered a term of one year beginning August 15, 1910, and for the said alleged breach of which this suit is prosecuted, plain-all of defendant's pupils who were to report tiff performed services, of the character there in contemplated, from September 1, 1910, to to February 17, 1911. Said services were rendered on Monday, Tuesday, Thursday, and Friday of each week, for such hours as defendant directed; plaintiff, with defendant's consent, reserving Wednesday and Saturday of each week exclusively for other engage ments. Plaintiff, however, soon began to complain to defendant that she was not be
ing called upon to serve a sufficient number of hours per day, demanding that more pupils be assigned to her; and on November 19, 1910, she wrote a letter to defendant reiterating this demand, and also demanding compensation for the loss alleged thus to have been sustained by her from and after September 1, 1910. To all such demands by plaintiff defendant's reply was that plain
tiff misconceived the nature of her contract, and that defendant was not bound to provide plaintiff with employment for any particular number of hours per day.
There is testimony adduced by defendant to the effect that on or about February 16, 1910, plaintiff refused to continue teaching unless more pupils were assigned to her. And on February 20, 1911, plaintiff again wrote defendant, asserting that defendant had breached the contract, and offering to had breached the contract, and offering to take $300 for the loss alleged to have been sustained by her to that date, provided she were given a guaranty that she would not
receive less than $150 per month thereafter
to June 1, 1911. The letter stated that, if
this were done, plaintiff would continue teaching; otherwise she would place the matter in the hands of an attorney. And plaintiff admits that she told defendant's president that she would not continue to teach
until she had an answer thereto.
In reply to plaintiff's last-mentioned letter, defendant's attorneys, on the same day, wrote plaintiff a letter, and caused the same to be delivered to her that night, which contained the following:
"If you will read your contract carefully, you will find that you are to be paid two dollars per hour only for the time when actually engaged in your work for the company. There is nothing in the contract guaranteeing that you shall be employed for any given number of hours, and we cannot understand what complaint you can possibly have, or what claim you can possibly make under your contract, either against the company or Mr. Strassberger. We are also informed by Mr. Bruno Strassberger that you have told him that you would not continue teaching until you received the answer of the
to her for instruction on that day, telling them not to appear. She had no pupils on Wednesday, February 22d; and she testified that she had learned that the only pupil whom she was expected to teach on Thursday, February 23d, would not be present. Plaintiff did not report for duty until Friday, February 24th, when she was told that
her pupils had been assigned to another
teacher, by whom they would be instructed
provided they remained in the school.
Plaintiff's testimony in chief is to the effect that she served about five hours a day, for four days a week, for the first year, under the contract of date August 1, 1909, but that under this same contract, as continued by these parties for the year commencing August 15, 1910, she was permitted to serve but two hours per day, "on some days, and
half an hour on others." In the course of her cross-examination, however, defendant's counsel had her identify written monthly statements handed in by her to the defendof the number of hours which she had served ant each month, containing her own record and which afforded a basis for her monthly pay checks. The amount thus shown to be due her each month beginning September, 1909, and ending with the month of January, 1911, had been paid her, and she had receipt
ed these various statements. The latter
show that in the first year during which plaintiff worked under this contract of August 1, 1909, the amount of time per day
which she had been required by defendant from one to six hours, averaging approxito teach, on four days of each week, varied mately three and one-half hours per day. Similar statements for the months of September, October, November, and December, 1910, for January, 1911, and to February 17, 1911, showed that plaintiff had likewise been called upon to work from one to six hours a day, for four days in each week, and that during this period the average was slightly more than three hours per day. These statements show no uniformity whatsoever in the number of hours which plaintiff was called upon to devote to defendant's work, either during the first year's operation under the contract of August 1, 1909, or during that portion of the term here involved prior to the termination of the employment. It appears that a lesson ordinarily consisted of a period of thirty minutes, and that plaintiff always served at least one hour per day,
sometimes two, three, four, or five, and oc- | relative to the number of hours per day casionally six hours. Her schedules were arranged for her in advance, and, as she stated, she would be notified by telephone "if expected half an hour earlier or later."
Shortly prior to trial below, to wit, on February 26, 1913, defendant duly made offer to permit plaintiff to take judgment for $51.52, being the amount, with accrued interest, due plaintiff for services actually rendered during February, 1911, for which she had not been paid, and being the subject-matter of the fourth count of the petition. This offer plaintiff declined.
At the close of plaintiff's case, and again at the close of the entire evidence, the defendant interposed demurrers to the evidence adduced in support of the first three counts of plaintiff's petition. These were overruled, and the case was sent to the jury under instructions which need not be here set out at length. The jury returned a verdict for plaintiff on all of the counts of her petition: On the first for $371.80; on the second for $49.28; on the third for $789.98; on the fourth for $51.52-the total being $1,262.62. Judgment was entered upon the verdict, but thereafter, compelled by the ruling of the trial court in passing upon defendant's motion for a new trial and its motion in arrest of judgment, plaintiff remitted $500.42 of this verdict, and a new judgment was entered in favor of plaintiff for the sum of $762.20, from which the appeal is prosecuted. There is no evidence in the record to establish the existence of a custom such as is alleged in the petition, though the court permitted plaintiff to undertake to make proof thereof; and in any event no custom of this character would be here available to plaintiff.
The case was submitted to the jury upon the theory that defendant was bound, under the contract, to give plaintiff employment for a reasonable number of hours per day, on about four days each week. At the instance of plaintiff the court so instructed the jury, and charged that in determining what would be a reasonable amount of time per day during the year beginning August 15, 1910, the jury might take into take into consideration the amount of time per day the defendant permitted plaintiff to serve during the previous year. The record shows that the trial court proceeded upon the theory that by the contract defendant employed plaintiff for about four days per week, and, since the number of hours per day was not mentioned, the law would imply a reasonable number, and that defendant was, in any event, obligated to pay plaintiff, at the rate of $2 per hour, for a reasonable number of hours, on four days each week, regardless of the amount of time which plaintiff actually served. How the jury arrived at what would be a reasonable number of hours we know not, since there was nothing before the jury touching this question, except the evidence
which plaintiff had served during the previous year. This, as we have said, averaged approximately three and one-half hours per day, while during the term here in controversy it averaged slightly more than three hours per day, at increased compensation, a difference which may readily have been caused by a slight change in the number of pupils requiring instruction of this character, and which, according to defendant's evidence, was so caused.
[1, 2] But it is clear that in so construing the contract the court erred. By the contract defendant did not bind itself to compensate plaintiff for any time except such as it might call upon her to devote to the work in question. It is true that it contemplates an employment of plaintiff by defendant as an instructor in defendant's school, but plaintiff agreed to so serve, on "about" four days each week, as and when required by defendant, and defendant agreed to pay plaintiff, at the rate of $2 per hour, for actual services performed. No doubt may be entertained as to the meaning of the language of the contract respecting the obligation assumed by defendant thereunder. Defendant did not bind itself to assign to plaintiff any particular number of pupils or hours of instruction, nor to compensate plaintiff except for the actual number of hours devoted by plaintiff to instruction, as and when defendant might direct.
The legal questions involved are elementary. It is not the province of the courts to make contracts for parties, but to enforce those which the parties have seen fit to make. This contract cannot be said to be ambiguous. Its language is not of uncertain or doubtful import. There is nothing upon its face calling for explanation by parol evidence. The true intention of the parties is, we think, readily discernible from the language which they employed to portray it. It is to be read, however, in the light of the surrounding circumstances, in order, if need be, to more perfectly arrive at the understanding and intention of the parties. Williams v. Railway Co., 153 Mo. loc. cit. 534, 54 S. W. 689; Laclede Construction Co. v. T. J. Moss Tie Co., 185 Mo. 25, 84 S. W. 76; Pulitzer Publishing Co. v. McNichols, 170 Mo. App. 709, 153 S. W. 562.
But the evidence respecting the surrounding circumstances, the relation of the parties, and their acts and conduct in the premises, in no wise tends to support plaintiff's theory as to the construction of the contract. The evidence is that plaintiff was first employed under a contract whereby she was paid $100 per month for devoting her entire time and attention to the employment. Within a year this contract, however, was abrogated by the parties, and a new contract, to wit, that of August 1, 1909, was entered into. Throughout the whole of the first year's operation under this contract it
is clear that both parties construed it to, recover on the first and second counts of her mean that defendant had the right to call petition, and that the court should have perupon plaintiff to render such services as de- emptorily directed a verdict for defendant on fendant might require during four days of each thereof. each week, paying plaintiff therefor at the  II. Nor can a verdict on the third rate of $1.75 per hour for services actually count of plaintiff's petition stand. As said rendered. This contract was renewed for above, this count seeks damages for the althe following year, with increased compensa- leged breach of the contract by defendant in tion per hour, and plaintiff was called upon wrongfully discharging plaintiff before the to serve nearly, though not quite, so many end of the term. Considering this phase of hours per day as during the previous year. the case, we may assume, without deciding, The contract of 1908 specified a maximum that defendant was bound to give plaintiff and minimum number of hours per week for employment, to some extent, on approximateplaintiff to serve, as and when required by ly four days per week during the stipulated defendant, while that of August 1, 1909, term, provided plaintiff kept and performed which abrogates the former contract, makes the contract on her part. So considering the no mention of the number of hours of serv-matter, it is clear that the evidence fails to ice, per day or per week, but provides that substantiate plaintiff's claim for an alleged plaintiff shall serve, for four days per week, wrongful discharge. Plaintiff admits that, as and when required by defendant, and that after making demands upon the defendant, the defendant shall pay her $2 per hour which, under the contract, she was not jusfor services actually rendered. It is to be tified in making, she stated to defendant's assumed that in entering into the latter con- representative that she would not continue tract the parties intentionally omitted to teaching until she had a written answer to specify any minimum number of hours for her letter of February 20th. Defendant's plaintiff to serve. evidence is that plaintiff also said that "under the present conditions she would not continue." But we shall look alone to the showing made by plaintiff. Plaintiff's letter constituted a refusal to continue in the employment unless her unwarranted demands were met. This was answered by the letter of defendant's attorneys of the same date, notifying plaintiff that, if she did not appear upon the following day to meet her pupils, they would be given to another instructor. In the face of this plaintiff, without lawful excuse, purposely absented herself on the following day, and did not appear until three days later, to wit, February 24, 1911, when she found that her pupils had, in fact, been assigned to another instructor. There can be no doubt that defendant acted fully within its rights under the circumstances, and that plaintiff can have no possible claim on the ground of a wrongful discharge.
Learned counsel for respondent urge that it would be unreasonable and unconscionable to interpret this contract to mean that the plaintiff was required to hold herself in readiness during four days each week to serve at defendant's beck and call, and be compelled to accept merely compensation for actual services rendered, though defendant did not see fit on certain dates to call upon plaintiff to put in more than one hour. A sufficient answer to this is that the contract is one which the parties saw fit to make, and it is not to be tortured into something inconsistent with their evident expressed intention. However, as plaintiff taught pupils of her own, for aught that appears, a contract of this character may have been, or may have appeared to be, to plaintiff's advantage, at the time of the making thereof. Indeed, she voluntarily abrogated the first contract, under the terms of which she was compensated at the rate of $100 per month, in order to enter into a contract of this character. In any event it is certain that no court can properly say that the defendant should be required to pay for services not rendered by plaintiff, in the face of the explicit provisions of the contract limiting defendant's liability to its agreement to pay $2 per hour for services actually rendered. This agreement defendant kept and performed to the end of January, 1911, paying plaintiff the amount shown to be due her by her own statements. It had therefore acquitted its obligation to plaintiff up to the time of the termination of the employment, except for the payment to plaintiff of the sum of $46 due her for services performed in the month of February, 1911, for which it appears that plaintiff rendered no statement to defendant.
 III. The verdict upon the fourth count, to wit, for $51.52, is for precisely the amount for which defendant, on February 26, 1913, offered to permit plaintiff to take judgment, being the $46 due plaintiff for services rendered in February, with interest. So much of the judgment may stand, but under the statute the offer, of course, stops the running of costs against defendant after the time of the making thereof.
The judgment will therefore be reversed, and the cause remanded, with directions to the circuit court to enter judgment for plaintiff for the sum of $51.52, together with costs accrued to February 26, 1913; the costs after said date, and of this appeal, to be assessed against plaintiff. It is so ordered.
REYNOLDS, P. J., and NORTONI, J.,
judge, is therein undertaking to act in exSTATE ex rel. GARDINER v. WURDEMAN, cess of his jurisdiction in the premises.
Circuit Judge. (No. 14902.)
On June 9, 1915, the St. Louis & San
(St. Louis Court of Appeals. Missouri. Nov. Francisco Railway Company filed a motion 2, 1915.)
1. PROHIBITION 18-ISSUANCE OF WRIT TIME.
Where the circuit court, on motion therefor, ordered a justice of the peace to correct the entries of judgments rendered by his predecessor, to conform to the transcript certified by his predecessor, such order was an assertion of its jurisdiction and authority to issue a rule upon the justice, so that, if the court was without jurisdiction to issue a final order against the justice, a preliminary rule in prohibition was not prematurely issued.
[Ed. Note. For other cases, Cent. Dig. § 67; Dec. Dig. 2. JUSTICES OF THE PEACE
see Prohibition, 18.] 126 JUDGMENTS CORRECTION BY CIRCUIT COURT STATUTES.
in the office of the clerk of the circuit court in St. Louis county, which was assigned to said division No. 2 of said circuit court, presided over by the respondent herein. This motion sets up that on August 10, 1910, the St. Louis & San Francisco Railway Company instituted against relator and one Olive Gardiner three suits before one A. H. Werremeyer, then a justice of the peace in and for Central township of St. Louis county, each of $300, executed by the defendants therein, founded upon a promissory note, for the sum said suits being numbered 126, 127, and 128, respectively, on the justice's docket; that on October 18, 1910, the said railway com
Rev. St. 1909, § 7528, providing that from the time of the filing of a transcript of a judg-pany filed a fourth suit before said justice ment of the justice of the peace in the office of the circuit court it shall be under the control of the court where the transcript is filed, could not apply to a so-called transcript of a justice's judgment which was not a true transcript of the docket entries, since there can be no transcript of a judgment which has never been entered; and Const. art. 6, § 23, and Rev. St. 1909, § 3956, giving circuit courts superintending control over justices of the peace, not confined within narrow limits, did not empower a circuit court to order a justice of the peace to make a correction or amendment of his predecessor's entries of judgment to conform to the judgment as rendered, or to the so-called transcript
[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 400, 464; Dec. Dig. 126.]
3. JUSTICES OF THE PEACE 119 JUDGMENTS-VERITY.
Judgments of a justice of the peace as entered speak for themselves and import verity. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 364; Dec. Dig. 119.] 4. JUSTICES OF THE PEACE 126-JUDGMENT -AMENDMENT-AMOUNT.
To insert in the judgment of a justice of the peace an amount in dollars and cents in place of the blank left therein would be to amend or correct the judgment.
[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 400, 464; Dec. Dig. mm 126.]
of the peace against the same defendants,
A. H. Werremeyer, as justice of the peace, "expired at the general election of 1914, and L. F. Matthews was duly qualified as his Original proceeding in prohibition by the successor, and has since qualified and is now State of Missouri, on the relation of William acting as such, and has succeeded in charge W. Gardiner, against Gustavus A. Wurdeman, of the docket of said Werremeyer and of the Circuit Judge, etc. Preliminary rule in pro-records in this case." hibition made absolute, and writ awarded. The transcript of the proceedings before
Philip Haberman, of St. Louis, for relator. R. H. Stevens and Jos. C. McAtee, both of Clayton, for respondent.
the justice, attached to the motion aforesaid, show the judgments in said suits actually entered by the justice on his docket. In the first three, Nos. 126, 127, and 128, the judgALLEN, J. This is an original proceeding ments were entered on September 3, 1910, in this court, in prohibition, the object there- while in the suit last filed, No. 202, the judgof being to prohibit the respondent, Hon. ment was entered on November 1, 1910. In Gustavus A. Wurdeman, judge of division suit No. 126, the justice's entry of judgment No. 2 of the circuit court of the county of recited that he found for plaintiff "in the sum St. Louis, from proceeding further with a of $3 interest included," and that it was certain matter pending before said court, thereupon adjudged that the plaintiff recover upon the ground that respondent, as such of the defendant "the said sum of $3