Summary
In Harrington v. Deloraine Refining Co., 99 Mont. 78, 87, 43 P.2d 660, we announced the rule that, "In construing a receipt, the paper must be viewed in its entirety and with due regard to the conditions surrounding its execution.
Summary of this case from Jensen v. CloudOpinion
No. 7,323.
Submitted January 30, 1935.
Decided February 21, 1935.
Master and Servant — Breach of Contract of Employment — Construction of Contract — Offer and Acceptance of Terms — Evidence — Admissibility — Pleadings — When Deemed Amended to Conform to Proof — Appeal — Payment — Receipt not Conclusive — Check "In Full Payment" — Verdict on Conflicting Evidence Conclusive on Appeal. Master and Servant — Breach of Contract of Employment — Construction of Contract as to Definite Period of Employment — Judicial Notice. 1. In an action for breach of a verbal contract of employment, defendant's contention that, conceding that he agreed to employ plaintiff for the "winter's work until spring," the words were insufficient for holding that a contract for a definite period of time was consummated, held not meritorious, the court taking judicial notice of the seasons, and the phrase meaning up to commencement of spring. Same — Breach of Contract of Employment — Sufficiency of Evidence to Show Offer and Acceptance of Terms. 2. Where plaintiff stated his terms under which, he would consent to work for defendant, and defendant's manager thereafter accepted his proposition, there was a sufficient showing from which the jury, in an action for breach of contract of employment, could infer that the parties had a mutual understanding as to the terms, and that there was a definite offer and acceptance. Appeal — When Pleading Deemed Amended to Conform to Proof. 3. Where evidence is admitted on a matter not pleaded without objection by the opposite party, the pleading of the one introducing it will on appeal be deemed to have been amended to conform to the proof. Master and Servant — Breach of Contract of Employment. 4. In a workman's action for breach of contract of employment, an instruction that defendant employer was not justified in discharging plaintiff if the failure of plaintiff properly to perform his duties was due to defective machinery (a matter not put in issue by the pleadings but canvassed in the evidence without objection) was properly given, under rule 3 above. Appeal — When Verdict Based on Conflicting Evidence not to be Disturbed. 5. The verdict of a jury rendered on conflicting evidence will not be disturbed on appeal unless the evidence clearly preponderates against it. Master and Servant — Breach of Contract of Employment — Admission by Defendant in Answer That Plaintiff was Discharged Conclusive — Instructions. 6. Admission in the answer of defendant employer that plaintiff, suing for breach of contract of employment, was discharged was conclusive, and refusal of an instruction that if plaintiff quit the employment and did not thereafter offer to resume work was proper. Accounts — Receipt in Full not Conclusive Evidence of Settlement of Account. 7. A receipt in full of a particular demand, or a check bearing on its face the legend "in full payment," is not conclusive evidence of a general settlement of an account between parties. Master and Servant — Breach of Contract of Employment — Payment by Check "In Full Payment" of Services Jury Question — Instructions. 8. Where plaintiff workman in his action for breach of contract of employment testified that a check received by him from his employer marked "in full payment" was for wages due at the time of his discharge, but defendant asserted that it covered plaintiff's expense in moving back to his former home, the question whether it was in full settlement of all demands of plaintiff was properly submitted to the jury, and an instruction that if it was cashed by plaintiff and represented payment over and above wages, plaintiff could not recover, was as properly refused. Same — Breach of Contract of Employment — Evidence of Wages Received in Former Employment Admissible. 9. In an action for breach of contract of employment, evidence relating to the wages paid to plaintiff by his former employer in the same kind of work was admissible for the purpose of showing some of the surrounding facts and circumstances of the employment.
Appeal from District Court, Toole County; R.M. Hattersley, Judge.
Messrs. Harris Hoyt, for Appellant, submitted a brief; Mr. G.G. Harris argued the cause orally.
Mr. D.W. Doyle, for Respondent, submitted a brief and argued the cause orally.
There was no hiring for a definite time. If the employment was not for a fixed period the contract could be terminated at the will of either party with or without cause. If there is no definite period expressed, the law will presume the hiring is at will. ( Weidman v. United Cigar Stores Co., 223 Pa. 160, 72 A. 377, 132 Am. St. Rep. 727; Currier v. Ritter Lumber Co., 150 N.C. 694, 64 S.E. 763, 134 Am. St. Rep. 955; Fahrenwald v. Ohio Steel Foundry Co., 16 F.2d 658; 18 R.C.L. 508; Hudson v. Cincinnati etc. Ry. Co., 152 Ky. 711, 154 S.W. 47, Ann. Cas. 1915B, 98, 45 L.R.A. (n.s.) 184.) "Unless the contract is for some definite time the servant has no right of action for discharge." (39 C.J. 91, par. 95.) There must be a mutual understanding that the contract is to extend for a certain fixed time. ( Resener v. Watts, Ritter Co., 73 W. Va. 342, 80 S.E. 839, 51 L.R.A. (n.s.) 629); see, also, Hall v. Chambersburg Woolen Co., 187 Pa. 18, 40 A. 986, 67 Am. St. Rep. 563, 52 L.R.A. 689; Lord v. Goldberg, 81 Cal. 596, 22 P. 1126, 15 Am. St. Rep. 82; Louisville N. Ry. Co. v. Offutt, 99 Ky. 427, 36 S.W. 181, 59 Am. St. Rep. 467; McIntosh v. Miner, 37 App. Div. 483, 55 N.Y. Supp. 1074; Combs v. Standard Oil Co., 166 Tenn. 88, 59 S.W.2d 525; Rape v. Mobile O.R. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422, 1424; 6 Cal. Jur. 215, 216.)
The court erred in refusing to give defendant's proposed instruction with respect to indorsement upon the second check given to the plaintiff, of the words, "In Full Payment," and directed the jury to return a verdict for the defendant, even though the plaintiff was hired for a specified period, if such an indorsement appeared upon the check at the time of delivery.
It is the rule that a cashed check may constitute a receipt. (48 C.J. 634.) The receipt itself would be prima facie evidence of payment in full. ( United States Fidelity Guaranty Co. v. Martin, 77 Or. 369, 149 P. 1023; Kuykendall v. Lambert, 68 Okla. 258, 173 P. 657.) A receipt in full of all demands will defeat an action on a note given before the date of the receipt. ( McKenzie v. Ray, 168 Cal. 618, 143 P. 1018; Sherman v. Sweeny, 29 Wn. 321, 69 P. 1117.)
Evidence admissible relative to wages paid to plaintiff where he had been employed prior to entering the employ of the defendant was inadmissible. It could not be used and was not admissible for the purpose of determining the amount of damages the plaintiff had suffered where the gist of his action was an alleged breach of a contract of employment. The measure of damages in this case would be the amount he would have earned under this alleged contract, less any amount received from other sources for services, or which he might have received by the exercise of diligence. ( McFarland v. Welch, 48 Mont. 196, 136 P. 391; Edwards v. Plains Light Water Co., 49 Mont. 535, 143 P. 962; Hurly v. Great Falls Baseball Assn., 59 Mont. 21, 195 P. 559.)
Taking into consideration all the evidence submitted, it conclusively and overwhelmingly established that plaintiff neither operated the plant with a reasonable degree of skill or attempted to do so; and that the plant was susceptible of successful operation. "Where skill as well as care is required in performing the undertaking, if the party purport to have skill in the business and he undertakes for hire he is bound to the exercise of due and ordinary skill in the employment of his art or business about it, or, in other words, to perform in a workmanlike manner." ( Baltimore Baseball Club Exhibition Co. v. Pickett, 78 Md. 375, 28 A. 279, 44 Am. St. Rep. 304, 22 L.R.A. 690; Schwab v. Peterson, 80 Mont. 214, 260 P. 711.)
The gist of the argument of appellant in respect to this question is that the testimony of respondent does not show that he was hired for a definite time. We contend that it does. (See Doolittle v. Pacific Coast Safe Vault Works, 79 Or. 498, 154 P. 753; DuPont v. Waddell, 178 Fed. 407, 101 C.C.A. 335; Weir v. Ryan, 68 Mont. 336, 218 P. 947.)
As to what may constitute a discharge, see Jones v. Graham Morton Transp. Co., 51 Mich. 539, 16 N.W. 893; Paine v. Hill, 7 Wn. 437, 35 P. 136; Percival v. National Drama Corp., 181 Cal. 631, 185 P. 972.
The offered, but refused, instruction relative to the effect of the indorsement "In full Payment" on a check assumed that the words "in full payment" constituted uncontrovertible evidence of a complete settlement between the parties, which is not true. (See 48 C.J. 634, 637-639.)
Appellant questions the correctness of the court's ruling in admitting evidence of the amount of wages received by the respondent prior to his entering the employ of the appellant. Under the rule laid down in Doolittle v. Pacific Coast Safe Vault Works, supra, all the facts and circumstances surrounding the parties and transactions may be shown, such as that the employee had a position which was apparently permanent, etc. Undoubtedly the fact that the respondent already had a position which was permanent and was paying him $150 per month would be some evidence that he would not leave that position unless again secured of a permanent position.
This is an action to recover for an alleged breach of contract of employment. The plaintiff alleges in his complaint that he was employed by the defendant in the capacity of refinery man for a period of time beginning "August 1st, 1932, and ending March 21, 1933," and that on the seventeenth day of October, 1932, without cause or reason, he was discharged, to his damage in the sum of $900. The defendant in its answer alleges that the plaintiff was employed from month to month, and justifies its action in discharging plaintiff for the reason that he did not operate the refinery in a manner satisfactory to defendant. The answer also contains an allegation of payment in full for the months during which plaintiff was employed.
The contract of employment was entirely verbal, and the negotiations were carried on between the plaintiff and Henry Vanderpas, president and manager of the defendant corporation. Excepting for the fact that plaintiff was to receive the sum of $150 a month, water, house and light, the evidence is in hopeless conflict.
As to the contract of employment, the plaintiff testified: "I had my dealing with Mr. William Vanderpas. Those dealings were with regard to my taking the position out there at the refinery. He stopped at the Shelby plant and we talked the things over; I made him a proposition that I would go out for $150, they were to furnish me house, water and light. I was to work until spring. He said he would let me know in two or three days. Afterwards he sent Mr. Knutson after me. We went out to the refinery that evening. They said they would accept my proposition and wanted to know how soon I could come out and go to work for them."
Regarding the contract, Mr. Vanderpas testified: "There was present at the time Mr. Ed Knutson, Everett Rice, Mike Harrington and myself. * * * I will relate the conversation that was had at the time. * * * I asked him how much money he wanted; he said $150 a month. I said, `Mike, that is pretty steep, because you know we furnish house, water, light and fuel.' He said, `Yes, Hank, but that is what I have been getting.' `Well,' I said, `if you make a success of the plant we will give you a try.'"
The only testimony concerning the negotiations between the plaintiff and defendant, and which fixed the duration of the employment, was the statement of the plaintiff to Vanderpas, as follows: "Now, Hank, I don't want to quit my job, else I would have winter's work until spring. You should know whether you are going to run or whether you ain't."
It is contended by the defendant that, admitting the testimony [1] of plaintiff to the effect that he was to work until spring, the language used would not warrant the court in holding that there was a consummated contract of employment for a definite period of time. We are confronted with the interpretation of the phrase, "to have winter's work until spring."
Webster's International Dictionary defines the word "spring" as follows: "The season of the year when plants begin to vegetate and grow; the vernal season, usually including March, April, and May in the middle latitudes north of the equator." In defining the term "until the summer of 1871," the court, in Abel v. Alexander, 45 Ind. 523, 15 Am. Rep. 270, said: "The courts take judicial notice of seasons, and of the general course of agriculture. (1 Greenleaf Ev., sec. 5; Floyd v. Ricks, 6 Eng. 452.) We think the true meaning of the dates named in the answers * * * means up to the commencement of summer." The word "until" is a restrictive word; a word of limitation. Its office is to point out some event or time, or the happening of some event, when what precedes it shall cease to exist or have any further force or effect. ( State v. Perkins, 139 Mo. 106, 40 S.W. 650; Maginn v. Lancaster, 100 Mo. App. 116, 73 S.W. 368.)
The contract of employment is sufficiently specific as to the term of employment.
It is further contended that the contract lacked mutuality, [2] and hence cannot be enforced. The evidence, though contradicted, tended to show that the plaintiff stated his terms to the manager of the defendant company and that the manager later stated that he accepted plaintiff's proposition. There was sufficient evidence from which the jury could infer that the parties had a mutual understanding as to the terms of the agreement, that there was a definite offer and acceptance. ( Adams v. Petroleum Midway Co., 205 Cal. 221, 270 P. 668; Royer v. Western Silo Co., 99 Kan. 309, 161 P. 654; Doolittle v. Pacific Coast Safe Vault Works, 79 Or. 498, 154 P. 753; Weir v. Ryan, 68 Mont. 336, 218 P. 947.)
It is urged that the court erred in instructing the jury that [3, 4] the defendant was not justified in discharging the plaintiff, if failure on the part of the plaintiff properly to perform the duties for which he was employed was due to defective machinery. This question was not directly put in issue by the pleadings. However, counsel for defendant, on cross-examination of plaintiff, asked him to explain why he did not get sufficient recovery from his operation of the refinery, and the plaintiff answered that the defendant did not have proper equipment on the towers of the refinery. Other testimony relative to defective machinery was put in evidence without objection by the defendant. Under the doctrine of implied amendment, the pleadings will on appeal be deemed to have been amended to conform to the proof. ( St. George v. Boucher, 84 Mont. 158, 274 P. 489; Lackman v. Simpson, 46 Mont. 518, 129 P. 325; Davis v. Claxton, 82 Mont. 574, 268 P. 787.)
The plaintiff testified that he was an experienced refinery [5] man; that he made as satisfactory recovery from the operation of the plant as the condition of the machinery and equipment would permit. There is testimony in the record given by other witnesses for the plaintiff to the effect that it would take some time to get a new refinery operating efficiently. All this was denied by the defendant. The conflict in the testimony was resolved by the jury in favor of the plaintiff, and, for the purpose of this appeal, its finding establishes the fact that defendant was not justified in discharging plaintiff because of incompetency. As so often announced by this court, the verdict of a jury on conflicting evidence will not be disturbed on appeal unless the evidence clearly preponderates against it.
Appellant contends that plaintiff was not discharged at all by [6] it, because he testified: "At the time I stated that Mr. Vanderpas called me into the office and told me he would have to let me go, he said to me that I could work for that day if I wanted to. I did not finish the day. I quit immediately because I was discharged about four or five o'clock. I never did work for the company after that time." The answer admits that plaintiff was discharged, which is conclusive so far as the question of discharge is concerned. In the light of this testimony and of the admission in the answer, the court properly refused defendant's proposed instruction No. 6, which declared that, if the plaintiff quit the employ of the defendant and that if he did not thereafter resume or offer to resume work, he could not recover.
Defendant asserts that the court erred in refusing to give [7, 8] defendant's proposed instruction No. 9. This instruction was to the effect that, if the jury found that the words "in full payment" were placed upon the check at the time it was given by defendant to plaintiff, and that delivery was made subsequent to the time plaintiff left the employ of defendant, and that the check was cashed by plaintiff and represented a payment over and above compensation for services actually rendered by plaintiff for defendant, then the plaintiff could not recover, even though it appeared that there was a contract of employment.
The plaintiff testified that the check above mentioned was given to him in payment of wages for the month of October. Defendant's manager testified that plaintiff called him up over the telephone and said he wanted a check for $65, and that he stated to plaintiff: "Well, Mike, we don't owe you anything; we paid you up in full when you quit. * * * And we talked a little and he said he had been to considerable expense about moving; so I said, `Well, I will take it up with the boys and see if they are willing; if so, we will give you a check for your moving expenses.' * * * They said, `Just give him a check for $65.'" Thus defendant's testimony disclosed, so far as defendant was concerned, the check was not given in payment or satisfaction of any damage that might have accrued to plaintiff because of his being discharged. The instruction was properly refused.
In construing a receipt, the paper must be viewed in its entirety and with due regard to the conditions surrounding its execution. A receipt in full for a particular demand is not conclusive evidence of a general settlement of accounts between the parties. (48 C.J. 634.) The question whether the check here considered was in full settlement of all demands due plaintiff from defendant was properly submitted to the jury. ( Everhardy v. Union Finance Co., 115 Cal.App. 460, 1 P.2d 1024.)
The court did not err in admitting testimony, over defendant's [9] objection, showing what wages were paid to plaintiff prior to entering the employ of defendant. It was undoubtedly admitted for the purpose of showing some of the surrounding facts and circumstances of the employment, and was admissible. ( Doolittle v. Pacific Coast Safe Vault Works, supra; Price v. Western Loan Savings Co., 35 Utah, 379, 100 P. 677, 19 Ann. Cas. 589.)
No error appearing in the record, the judgment is affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.
Rehearing denied March 14, 1935.