53 Ga. 82 | Ga. | 1874
The plaintiff sued the defendants on an open account for his services as clerk, and on the trial of the case the jury found a verdict for the plaintiff for $275 00. A motion was made for a new trial, on the grounds that the verdict was contrary to the evidence, and without evidence, that it was contrary to law, and contrary to the charge of the court; which motion was overruled, and the defendants excepted. The evidence in the record shows, that in September, 1871, the defendants employed the plaintiff as a clerk for one year, and were to give him $40 00 per month and board him. In April, 1872, the defendants discharged the plaintiff from their employment because their business was dull, and for no other reason, so far as the record shows. The plaintiff then sued the defendants for what was due him for his wages up to that time, and recovered a judgment therefor. The present action is brought to recover his wages for the balance of the year after his discharge. The defendants contend that he cannot do that, because he treated the contract as rescinded, and brought his suit for what was due him up to the time of his discharge from their employment. This depends on the construction to be given to the 2726th section of the Code, which declares that in some cases even an entire contract is apportionable, as where the price to be paid is not fixed, or is by the contract itself apportioned according to time, so if the failure of one party to perform is caused by the act of the other, the contract may still be apportioned. In this case, according to the evidence in the record, the defendants were to pay plain
Let the judgment of the court below be affirmed.