Opinion
2 Div. 537.
February 5, 1935.
Appeal from Circuit Court, Wilcox County; John Miller, Judge.
Action for breach of contract of employment by James A. Lloyd against the Standard Oil Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
John S. Coleman and A. J. Bowron, Jr., both of Birmingham, P. E. Jones, of Camden, and Bradley, Baldwin, All White, of Birmingham, for appellant.
Where a creditor or claimant accepts an amount tendered by the other party in settlement of an unliquidated claim, the debt or claim is extinguished, even though at the time of acceptance he expresses dissatisfaction with the amount tendered. The tender and condition cannot be dissevered; the creditor or claimant must accept or reject the tender in its entirety. Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78; Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; Canton Union Coal Co. v. Parlin Orendorff Co., 215 Ill. 244, 74 N.E. 143, 106 Am.St.Rep. 162; Arnold Co. v. Gibson, 216 Ala. 314, 113 So. 25; 1 R.C.L. 194. In suit for wrongful discharge, the employer is entitled to show, in mitigation of the employee's claim, amounts received by the employee from other sources subsequent to the alleged wrongful discharge, if such amounts would not have been available to him had he continued his employment. Holloway v. Talbot, 70 Ala. 389; Wilkinson v. Black, 80 Ala. 329; Restatement of Contr.Am. Law Inst. § 336 (c); 6 L.R.A.(N.S.) 94, note. The complaint was subject to demurrer for failure to aver plaintiff was ready, willing, and able to perform the obligations assumed by him under the alleged contract. Barney Coal Co. v. Davis, 1 Ala. App. 595, 55 So. 1023; Sloss-Sheffield S. I. Co. v. Payne, 192 Ala. 69, 68 So. 359. A complaint for breach of contract which does not set out the contract in hæc verba or in substance is defective, and demurrers thereto should be sustained. Sloss-Sheffield S. I. Co. v. Payne, supra.
James Perdue, of Birmingham, and Bonner Bonner, of Camden, for appellee.
Before there can be an accord and satisfaction, there must be a bona fide dispute. The debtor must admit there is something due and contend for a different amount than that claimed by the creditor. The debtor must make known to the creditor in some unmistakable manner that the amount offered is to extinguish the obligation. And there must be acceptance by the creditor. 1 C.J. 529, 533; Karter v. Fields, 140 Ala. 352, 37 So. 204, 205; City of Montgomery v. Shirley, 159 Ala. 239, 48 So. 679; Stephenson v. Allison, 165 Ala. 238, 51 So. 622, 138 Am.St.Rep. 26; Code 1923, § 5640. Defendant was not given due credit for the amount received by plaintiff as a special allowance, but only for such amount as plaintiff obtained or could have obtained by other employment. Wilkinson v. Black, 80 Ala. 329; Navco Hardwood Co. v. Bass, 214 Ala. 553, 108 So. 452; Strauss v. Meertief, 64 Ala. 299, 38 Am.Rep. 8; Western Union T. Co. v. Jackson L. Co., 187 Ala. 629, 65 So. 962; Warten Cotton Co. v. McGuire, 206 Ala. 469, 91 So. 308; Ala. N. R. Co. v. Hoge, 207 Ala. 692, 93 So. 517; People's Shoe Co. v. Skally, 196 Ala. 349, 71 So. 719; U.S. S. B., etc., v. Sherman Ellis, 208 Ala. 83, 93 So. 834; Holloway v. Talbot, 70 Ala. 389; 17 C.J. 767, 770, 775. Averment of readiness and willingness on part of plaintiff was not necessary in count for breach of contract. Marx v. Miller, 134 Ala. 347, 32 So. 765; 39 C.J. 98; Morris S. Co. v. Coleman, 187 Ky. 837, 221 S.W. 242; Caluwaert v. Schapiro, 90 Misc. 301, 152 N.Y.S. 1016; Beaucage v. Winnipeg S. Co., 14 West Lr. 575; Williams v. Scott, 70 Ill. App. 51. Only money received from employment of same general nature as that from which plaintiff was dismissed can be shown. Strauss v. Meertief, supra.
The complaint was in one count as follows: "The plaintiff claims of the defendant $2,187.00 as damages, for that said defendant on, towit: August 24, 1932, employed plaintiff as a general salesman, for a period of twelve months from said date, at a monthly salary of $202.50 per month, and on September 30, 1932 said defendant discharged plaintiff from its said employment without just cause, to plaintiff's damage as aforesaid."
This complaint was demurred to on several grounds, none of which are considered except No. 9 in the following language: "For aught that appears, the plaintiff was not in position to carry out his part of the said alleged contract."
The contract between the parties was mutual, imposing obligations on both. On the part of defendant to employ and to pay for services rendered and on the part of plaintiff to have the readiness and ability to render the service contracted for. On the failure on the part of defendant to comply with its obligations under the contract there was open to the plaintiff two remedies: (1) To await the end of the term of employment contracted for and bring suit for the amount then due, after allowing all just offsets; or (2) he may treat the contract as terminated and sue for damages for the breach. In a suit for a breach of the contract of employment and damages for the breach, it is not necessary to aver in the complaint a readiness and willingness on the part of plaintiff to perform the services throughout the term he bound himself to serve. Marx v. Miller, 134 Ala. 347, 32 So. 765. However, there must be an averment of plaintiff's willingness and ability to perform at the time of the alleged breach. Marx v. Miller, supra; Sloss-Sheffield S. I. Co. v. Payne, 192 Ala. 69, 68 So. 359. The foregoing is pointedly and definitely decided in the last-cited case and that holding has been approved in the following cases: Roobin v. Grindle, 219 Ala. 417, 122 So. 408; Moss v. Gulf States Steel Corp., 224 Ala. 430, 140 So. 402; Hamilton v. O'Rear, 224 Ala. 625, 141 So. 565; Finklea v. Garrick, 25 Ala. App. 385, 147 So. 677.
The plea in this case was, in short by consent, with leave to give in evidence any matter of defense as if the same had been specially pleaded. This general plea included a plea of accord and satisfaction and around this plea centers the principal contention of the parties.
It is contended on the part of plaintiff that on the 24th day of August, 1932, this defendant, acting through its manager for this state, entered into a contract with him for a term of one year from that date at a stipulated salary of $202.50 per month. The duties of plaintiff under the contract were that of general salesman and inspector of local stations on a designated territory. There was evidence tending to prove this contract. It is without dispute that plaintiff was discharged by defendant on September 30, 1932, without notice or warning. He was simply called to the office of the manager in Birmingham and discharged. There was also evidence tending to prove that plaintiff had been discharged without cause.
There is evidence tending to prove that while plaintiff recognized the discharge and left the service of defendant, he did not consider the matter closed, but contended that he should be paid something by the company, how much was not definitely claimed, but defendant recognized at least a moral obligation by offering to pay plaintiff an amount equal to one-half salary for a period of three months. "Not as salary, but as a special allowance." Plaintiff never agreed to accept the "special allowance" as final settlement of his claim, but he did accept the various amounts aggregating $303.75 and still retains same. On October 19, 1932, defendant's manager at Birmingham wrote plaintiff a letter in which was the following:
"As of September 30, 1932, you were released and your name taken from our payroll. It was agreed, however, that for period of 3 months, October, November, December 1932, you would be made a special allowance, not salary, equal to 50% of your salary.
"This is the only settlement our company are willing to make."
From the contract it appears that: "It was agreed," appearing in the letter did not include plaintiff, but was confined to those in authority in defendant's company. The foregoing does not constitute accord and satisfaction. Indeed the defendant was very definite and positive in its position that the payment of the amount "equal to one half salary for three months" did not relate to or recognize any liability under the contract alleged here to have been breached, nor was such payment made under any agreement that it should extinguish any claim under the contract of employment.
Whether a debt has been paid depends upon the meeting of the minds of the parties, and, if a smaller amount is paid than the amount claimed to be due, the payer must so intend at the time of payment and the creditor must receive such payment with like intent. Karter v. Fields, 140 Ala. 352-362, 37 So. 204. For the payments in this case to constitute accord and satisfaction, it is essential that the payments should have been made and accepted in satisfaction and extinguishment of a demand growing out of the contract of employment. 1 Corpus Juris 529 (D).
The suit in this case is for damages for a breach of a contract of employment. It was the duty of plaintiff to seek other employment of a similar nature and to thus mitigate the damages incident to the breach and amounts received in such employment are proper items in reducing the recovery in plaintiff's suit. Also such amounts of money received by plaintiff from defendant after the breach, which he would not have received if he had continued in the employ of defendant. The damages to which one party to a contract is entitled because of a breach thereof by the other are such as arise naturally from the breach itself, or such as may be reasonably supposed to have been within the contemplation of the parties at the time of making the contract as a probable result of a breach thereof. A recovery in such case is to be mitigated by amounts which might have been prevented by reasonable efforts on the part of the party injured. 17 Corpus Juris 767 (96). And also, by amounts paid by the original wrongdoer made in respect to the same subject-matter. New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391, 78 N.E. 463. In the instant case this would entitle defendant to a reduction of damages by the salary received by plaintiff from the state during the term (Wilkinson v. Black, 80 Ala. 329); and by the amount paid by defendant by way of a "Special Allowance," and for which there was no consideration save a desire on the part of defendant to relieve plaintiff's financial condition brought about by defendant's act. While defendant did not recognize any obligation by reason of the contract sued on, the payment of $300.75 was made in respect to the same subject-matter. The court erred in excluding this item and in its various rulings on this point. 17 Corpus Juris 928.
The court did not err in excluding evidence as to any money earned by plaintiff during the term of the contract. The amounts to be applied in mitigation of damages do not include money earned in employment not of equal grade and of a more menial or onerous kind. Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8.
The foregoing will suffice as direction to the circuit court on another trial.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.