Basse v. Allen

| Tex. | Jul 1, 1875

Reeves, Associate Justice.

The appellant assigns for error the action of the court in striking out that part of his answer which charges the appellee with a breach of his contract. He also complains of the charge of the court to the jury, but which, for want of a statement of facts, will not be considered in disposing of the case.

The suit was brought by the appellee, Allen, on a written contract with Basse, made September 1, 1872. The contract recites that Allen “ agrees to and with Basse to run his mill and to give his skill and labor as a miller to the best advantage for one year,” and that Éasse agreed to pay Allen for his services one hundred and. five dollars, in gold, per month, to be paid at the end of each month. It was-further stipulated that either party might terminate the agreement on giving a month’s notice of his intention to the other.

The plaintiff claims the sum of seventy-three dollars and eighty-three cents as a balance due and unpaid for his services for the month of January, 1873, and the further sum of one hundred and five dollars for bis services for the month of February.

Among other defenses set up in the answer, the defendant states that he discharged the plaintiff on the 31st day' of January, 1873, for gross neglect and want of care and attention to defendant’s mill and for drunkenness. He alleges that the plaintiff, during the latter part of the year 1872, and particularly-during the month of January, 1873, became negligent in the performance of his duties as defendant’s 'miller; that he established himself as a practicing physician in the town of Fredericksburg; that he unnecessarily absented' himself from the mill, in disregard of his duties and obligations under said contract; that at sundry and divers times, and particularly in the latter part of the month of January, 1873, the plaintiff appeared in said mill, during working hours,, intoxicated and totally unable to perform his duties as defendant’s miller; and that his- malfeasance- and negligence was of such a nature that defendant’s-mill was endangered-thereby:

On plaintiff’s exception, the above and foregoing portion of the answer was stricken out, on what ground does not appear in the bill of exceptions signed by the judge. It may have been because the charges of misconduct, as alleged in the answer, were regarded as being too general, that being the ground of the plaintiff’s exception. If that was the reason why the answer was held to be insufficient, we think the ruling was erroneous.

The facts as stated in the answer, if true, were a defense to the suit, and the defendant should have been allowed to introduce evidence in support of his answer.

If the plaintiff claims the benefit of the month’s notice provided for in the agreement, he must show compliance with its terms; or if the defendant can show that the plaintiff failed to comply with the agreement, he should be permitted to do so. This he attempted to do by his answer, to which the exceptions were sustained; and in this there was error, for which error the judgment must be reversed.

Reversed and remanded.