Appeal from the Circuit Court of Winnebago county; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Judgment reversed.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
In November 1952 the plaintiff, a construction engineer, was employed by defendant as an estimator and salesman. Although, at the time of his employment, nothing was said to plaintiff about vacation pay or about reimbursement for transportation or for expenses incurred in the course of his duties the record discloses that the parties understood that it was the custom of the company to grant to its employees two weeks vacation each year with pay, and that monthly expense accounts would be submitted to the company, by its several employees, and they would be reimbursed by the company.
On June 28, 1957 the instant complaint was filed in the Circuit Court of Winnebago County by which the plaintiff sought to recover from the defendant his expenses for the year 1953, aggregating $1322.71, together with two week's vacation pay, one in 1953, and another in 1954, and for four additional day's work in 1955, all amounting to $476 and in addition sought to recover $322.26 for traveling and entertainment expense for the month of July 1955. These several items aggregate $2120.97 and it was for this sum plaintiff demanded judgment.
The defendant's amended answer admitted plaintiff's employment, date of employment, salary rates and the termination of plaintiff's employment as alleged. Defendant denied that it was indebted to plaintiff in any sum and averred that on September 22, 1955 it had sent to plaintiff its check dated September 10, 1955 for $322.26 in full payment for all services and salaries due the plaintiff and in full satisfaction of any and all disputes between plaintiff and defendant and had repeatedly assured plaintiff that it would honor this check if presented for payment. It was then averred that plaintiff had retained said check but had refused to present said check for payment and the pleader concluded that "said check was accepted by plaintiff in full accord, satisfaction and payment of the alleged claims stated in plaintiff's complaint," and bars and precludes plaintiff from any recovery herein.
By plaintiff's reply he admitted that defendant forwarded to him its check in the sum of $322.26 but denied that he accepted or retained it in satisfaction of his claims against the defendant and that he promptly so advised defendant; that said check was one of a series of checks which was forwarded to him by the defendant in September, 1955; that defendant sought, by the endorsement on the reverse side of said check, to obtain from plaintiff a release of the amounts rightfully due him from defendant and for that reason he refused to endorse or negotiate it; that the amount of said check, $322.26, was the amount due him for traveling and entertainment expenses for the month of July, 1955 and that he advised defendant that if the endorsement on said check was removed from the reverse side thereof or a new check issued to him he would accept it in full for his traveling and entertainment expenses for the month of July, 1955 but not for any other purpose.
The issues made by the pleadings were submitted to the court for determination resulting in a finding and judgment in favor of the plaintiff for $1322.71 and defendant appeals.
The record discloses that plaintiff went to work for defendant under an oral arrangement on November 11, 1952 at a salary of $125 per week which was afterwards increased to $200 per week. He continued in this employment until August 1955. His office adjoined the drafting room in the company's plant at Rockford. His duties required him to contact customers and in so doing he was frequently absent from his office and used his own car for transportation with the knowledge, consent and approval of the defendant.
It further appears that the defendant had a rule which required all expense accounts to be turned in by all employees within ten days after the close of the month in which the expense was incurred; that all employees did so except the plaintiff and that the first time plaintiff turned in any expense account was in February 1954. Charles Heffs, comptroller of the defendant, testified that he knew plaintiff was doing some traveling for the company and several times during 1953 requested plaintiff to turn in his expense account but he did not do so; that on or about August 10, 1954 he again asked him to get in his expense accounts and inquired of him whether he, Danks, had any expense for 1953 to which Danks replied that it was small and "he would forget it." The expense accounts submitted by plaintiff for the months of September and October 1954 and for the months of March, April and May 1955 were paid as indicated by a letter dated September 1, 1955 from Mr. Heffs, who wrote the plaintiff:
"Dear John: Enclosed are checks which represent reimbursement of your traveling and entertainment expenses as follows:
Check Number Period Amount
7903 September 1954 $ 136.41 7904 October 1954 364.50 7905 March 1955 428.71 7906 April 1955 378.19 7907 May 1955 513.85 ________ $1821.66
"Your final expense statement submitted for the month of July 1955 has been approved for payment and will be forwarded to you soon."
On September 22, 1951 Mr. Heffs again wrote plaintiff:
"Dear John: Enclosed is our check for the amount of $322.26 which represents reimbursement of your travelling and entertainment expenses for the month of July, 1955 and also ...