129 Wash. 570 | Wash. | 1924
As alleged in his complaint as originally filed in this action, the plaintiff, Case, sought recovery from the defendant, Knight, upon, the theory that there was a balance due him for services rendered in pursuance of an employment contract entered into between them. "When the case came on for trial in the superior court for Clallam county, the plaintiff asked, and was
On April 12, 1920, these parties entered into a contract of employment by the terms of which respondent was to go upon appellant’s grain and dairy farm in Jefferson county and operate it for him for a period of one year from that date. Respondent was to receive as compensation therefor a stated salary of $130 per month and a stated portion of the poultry products of the farm, and also have the privilege during his employment to occupy with his family the dwelling house upon the farm. Respondent immediately moved with his family into the dwelling house and entered upon his employment. This employment continued until about October 9, 1920; the agreed salary being paid at the end of each month. At that time appellant notified respondent that his employment was at an end, and demanded that he move oft the place; this notice and demand, as claimed by respondent, being without just cause. Respondent did not then move off the place, but continued to live there with his family, and also continued to care for the place and the stock thereon in such manner as that season of the year ordinarily requires. "While appellant seems to have continued to insist on respondent moving, he also seems to have in some measure acquiesced in respondent’s care of the
“This judgment is without prejudice to the rights of defendants to sue the plaintiff for any amount that may be due from plaintiff to them. ’ ’
The present action was commenced in November, 1921, which, it is to be noticed, was several months after the expiration of the year of employment agreed upon in the contract between the parties.
It is first contended in behalf of appellant that the trial court erred to his prejudice in permitting respondent’s complaint to be amended at the beginning of the trial, changing the theory of his claim of recovery from contract to damages. This amendment was asked for by respondent manifestly because of the decision in Carmean v. North American Transp. & Trad. Co., 45 Wash. 446, 88 Pac. 834, 112 Am St. 930, 13 Ann. Cas. 110, 8 L. R. A. (N. S.) 595, wherein this court repudiated the doctrine of constructive service and held in substance that the only proper, remedy available to an employee upon the breach of his employment contract by discharge is one of damages
It is next contended that the judgment rendered in the possessory action became res judicata of respondent’s claimed right of recovery in this action. We cannot agree with this contention. It seems to be elementary law that:
“Upon his discharge, a servant must leave peaceably, whether or not the discharge was rightful and vacate the house or premises occupied by him as servant. If he fails to leave peaceably or after doing so returns, he becomes a trespasser, and may be ejected by the master, although his wages may not all have .been paid.” 26 Cyc. 996.
This at once renders it plain that whatever damages respondent may have suffered by his discharge from his employment under the contract would have been no defense whatever to appellant’s claim of right to be re-possessed of the place; it being plain, as we think, that the contract was nothing more than a contract of employment between master and servant. Nor do we
It is further contended in behalf of appellant that the judgment as to its amount is not supported by the evidence, more particularly in that respondent has not shown that he could not have obtained employment elsewhere and received compensation therefor in mitigation of the damages he here seeks to recover. This is a question of fact as to which we think the evidence preponderates in favor of respondent.
It is finally contended in behalf of appellant that the court erred to his prejudice in allowing interest
Our conclusion is that the judgment appealed from must be affirmed in so far as it awards respondent recovery for the principal sum of $712.65, to draw interest from June 21, 1922, the date of its rendering; and that the judgment must be reversed in so far as it awards respondent recovery for interest in the sum of $47.06 before the date of its rendering. It is so ordered. The judgment thus being affirmed in part and reversed in part, in the exercise of our discretion under § 1744, Rem. Comp. Stat. [P. C. § 7329], we conclude that neither party shall recover any costs against the other incurred incident to this appeal. The superior court is directed to correct its judgment accordingly.
Main, C. J., Holcomb, Tolman, and Mackintosh, J J., concur.