91 Neb. 538 | Neb. | 1912
Lead Opinion
Plaintiff was tbe manager of tbe Hastings Independent Telephone Company, defendant, from January, 1906, to February, 190.7, and tliis is an action to recover an unpaid balance of $200 on bis salary under his contract of employment. The amount of the monthly salary which defendant agreed to pay him for his services for the eight months from April to November, inclusive, was tbe controverted issue. What defendant in fact paid him was $75 a month. For that period he recovered in this action upon a trial to a jury a judgment for $25 a month more and interest, or $241.45 in all. Defendant has appealed.
In the form in which the record is presented for review, the judgment must stand or fall upon the sufficiency of the evidence to sustain the verdict. Plaintiff did not sue upon a quantum meruit, hut. upon a contract. In his petition he alleged that he was employed as manager December 13, 1905, that his services were to begin January 1, 1906, and that defendant agreed to pay him $75 a montli “for the first two or three months, and, if the said defendant retained the plaintiff longer than two or three months, to pay him $100 for the balance of the time said plaintiff was employed by defendant.” He further alleged there is due him from defendant “on said contract of employment for services rendered by the plaintiff to the defendant, from April 1, 1906, to December 1, 1906, a balance of the sum of $200.” Both parties agree that plaintiff’s salary for the months of January, February and March was fixed by the coniract at $75 a month and paid. For the mouths of December and January plaintiff re
In view of these facts, it was incumbent on plaintiff, since he sued upon a contract of employment fixing his salary, to prove that defendant agreed to pay him for his services $100 a month from April to November inclusive. Was the contract proved? His oral testimony shows that he had previously occupied a similar position at Broken Bow. While thus employed, early in December, 1905, he attended at Hastings a meeting of defendant’s •directors — a board composed of five members. On the witness-stand he said lie told the board at that meeting his salary at the time was $100 a month. When asked if he was getting that, he answered: “I was; yes, sir. One of the board then asked me what my object was in coming down here for $75 — asked what was my object in leaving there at $100, when I was only to get $75 here. I said that this was a larger town and a larger company, with larger opportunities for me, and they finally said: ‘You come as an entire stranger. All that we know is what you tell us of your experience, and you should be willing to work for a month or two for $75 per month/ until, as they expressed it, they could ‘try me out;’ and I told them I would under those circumstances, but that I would not consider that permanently, and that, I think, was the sum and substance of the whole conversation. They told me that they would take the matter under consideration and notify me, and I took that as indicative that they were through with me that night.”
Referring to his first meeting with the members of the board, plaintiff testified he told them what he was getting, and that he had said: “I wouldn’t take less, except that I would take less for a month or so, until they found I was the man they wanted;” and, further: “I don’t know as I would have any objection to working- a month or so with you for that figure” — $75 a month. He testified that no particular timé was fixed to begin the payment of $100 a month; that, though it was his duty to bring matters of business before the board, he never presented the question as to when full compensation should begin; that in April or May he spoke to two of the five directors about bringing the matter before the board, and that they said they would bring it up; that he “made no statement to the board at the end of three months as to why his sálary should not be $100 a month.”
Plaintiff is bound by his petition and by his own testimony in support of its allegations. It follows that in making his own case he has conclusively established against himself these propositions: The copy of the letter quoted did not contain the terms of his contract of em
The judgment is therefore reversed and the cause remanded for further proceedings.
Reversed. ,
Dissenting Opinion
Filed. June 25, 1912.
dissenting.
I am unable to agree with the majority opinion. A statement touching the facts and evidence is contained in that opinion. It appears that the plaintiff brought an action to recover an alleged unpaid balance of $200 on his salary. He sought to recover for his services for the eight months from April to November, 1906. He recovered upon a trial to a jury a judgment for $241.45. The majority opinion holds that the evidence is insufficient to sustain the verdict. It is said in that opinion that “plaintiff did not sue upon a quantum meruit, but upon a contract.” Whether he sued upon a quantum meruit or upon a contract ought not to make much difference touching his right to recover, so long as he sued for liis wages during a given period when his employment is undisputed, and the fact that he work'ed for the comjiany and that the company received the benefit of his services is not denied. It is, to the mind of the writer, a rather technical distinction which would deny a plaintiff pay for his services because his petition set up a contract at so much per month instead of alleging the reasonable value of his services for the time he was employed. The majority opinion says: “Both parties agreed that plaintiff’s salary for the months of January, February and March ivas fixed by the contract at $75 a month and paid. For the months of December and January plaintiff received $85 a 'month, and this compensation is not in dis
After the meeting of the board the manager of the defendant company wrote the plaintiff a letter, in which it was said: “Our board met this morning and decided to employ you under the conditions talked over when you were here, viz., $100 per month, if they decide to retain you.” The plaintiff went to Hastings and then went to work for the company. It seems that no particular time was fixed to begin the payment of $100 a month. He seems to have spoken to two of the five directors of the company about bringing the matter up before the board, and he testified that they said that they would bring it up. In the language of the plaintiff, he was not to receive that amount monthly until “they could dry me out,’ ” or “until they found I was the man they wanted.” It is said in the opinion that the plaintiff did not prove that the defendant’s board of directors “tried him out,” or that they found him to be satisfactory, or to be “the man they wanted.”
In answer to this contention, it appears that they kept him, and that he worked eight months in addition to the time for which he claims he was fully paid.. It is the
It would seem to have been the policy of our courts to alloAV the person employed reasonable compensation for his services, whatever the bargain may have been, and Avithout reference to a strict construction of the contract. It would seem that, if the telephone company permitted
I am of the opinion that the judgment should, be affirmed, or, if reversed, that it should be with instructions for a reference to determine the amount of a reasonable compensation and to render judgment thereon, for the plaintiff. It may be that the latter is contemplated by the majority opinion, although it is not so stated, and for this reason I make this contention so that the plaintiff may be apprised of his possible rights.