D. & R. Meade v. Rutledge

11 Tex. 44 | Tex. | 1853

Hemphill, Ch. J.

We are of opinion that evidence of the time of the commencement of the contract was admissible under the pleadings. It was not specified in the writing, and consequently extrinsic proof became necessary.

Hor was there error in making the executor a party, after the close of the testimony. The object of the law was attained by having a party at the verdict and judgment. It would have been idle, after the party was formally made, to have caused the evidence to be again repeated to the jury.

The principal questions arising upon the assignments, and the arguments of counsel are,

1st. Whether the contract was for one year; and

2nd. If for a year, whether the verdict and judgment be supported by the facts of the case.

It does not appear from the record, that any question was made below, relative to the term of service. It had been averred by the plaintiff, and not specifically denied by the defendants, to be for a year—and upon this point no instruction was sought from the Court. Probably both parties regarded it as a yearly contract; and this, although the terms are indefinite, was not, in relation to this class of contracts, an unreasonable construction. Overseers are generally employed by the year; and there is nothing in the terms of this contract, which required it to be constituted an exception to the general usage.

The contract, then, being for a year, and having been broken by the dismissal of the plaintiff, the question as to the measure of his damages arises for consideration. It is contended by the appellants, that the criterion by which this is to be ascertained, is the loss actually sustained; and by the appellee, that, as he was dismissed without cause, he is entitled to recover for the whole time stipulated. Upon this, and questions of an analagous character, there will be found, on examining the authorities, quite a conflict of opinion. In older cases, even in relation to overseers’ wages, the rule is generally recognized, that contracts for hire cannot be apportioned, and that the employee, if he voluntarily abandon the service before the period specified in the contract, can recover no compensation for services already rendered; and on the contrary, if dismissed without good cause, he can recover wages for the whole time. That this rule is merely technical and, in its operation, inflicts great injustice, is obvious, on the slightest reflection. If, for instance, the plaintiff in this case, after rendering ten months’ services, and which might be most beneficial to his employers, had left the employment or been discharged for sufficient reason, would it not be most oppressive to deprive him of all compensation for the services actually rendered % The damages resulting from his abandonment may have been very slight. His place might perhaps have been promptly filled by another equally competent. To refuse compensation for the actual service, under such circumstances, would be in fact compelling the plaintiff to bestow upon the defendants the sum of five hundred dollars gratuitously, for the mere purpose of carrying into effect a technical rule of law, not properly applicable to cases of this nature. The converse of the rule, if enforced against the planter-, would be equally onerous.

If the offer, by an overseer, to perform service, is equivalent, in every respect, to actual performance, he might, without doing duty for a day, recover wages for the year—although perhaps he may be engaged during the year elsewhere in some employment equally or perhaps more profitable—or might have been engaged, had he made any attempt to procure employment. This would be too monstrous to be sanctioned by any sound principles of law or rules of equal justice.

The planter might, in the course of the year, remove elsewhere, or his plantation or forces might be sold for debts; would there be any justice in an overseer’s exacting, compensation for the whole year ? Or would it not be much more reasonable that he should be paid for services actually performed ; and such damages as would probably result from this unexpected dissolution of the contract %

Let us suppose, in an analogous case, that a mechanic had been employed to build a house, and after some work done, or before commencement, the employer finds himself without funds, or for some reason forbids the execution of the work, can the the mechanic, under the rule in relation to tender, recover the contract price of the work, as though it had all been performed % This seems to have been, at one time, the general rule; but the contrary may now be said to be established, and the damages actually sustained only allowed for compensation.

Such is the recognized criterion, for damages to be allowed mechanics, boatmen, &e., for broach of contract, in the cases of Shannon v. Comstock, 21 Wendell, 451; 1 Denio, 317; Littel’s Select Cases, 366; 6 Dana, 352; 7 Dana, 472 ; 8 Dana, 48.

The whole doctrine, in relation to the extent and operation of the rule, that a tender to perform a condition precedent in a contract, and a refusal to accept by the party entitled to the benefit of it, is equivalent to performance, was examined and discussed with great ability in the cases from Kentucky; and it was shown to be operative only to authorize suit for nonperformance, but that plaintiff’s recovery would be restricted to the amount of damage actually sustained, unless the condition precedent could have been performed at once, by a single act, which the plaintiff had offered to perform; and when, too, the defendant, notwithstanding the refusal, might bring a suit and recover the property or thing tendered. But the services of an overseer or mechanic are not such as can be performed by a single act. They are continuous, and though offered to be commenced, yet they are liable, from many causes, to interruption; and, in no just sense, can a tender or offer to perform, be equivalent to a full performance. If a carriage or a horse be offered to a person who has contracted to purchase, the tender is equivalent to performance, and the party offering is entitled to full price, for the reason that the condition precedent can be performed by the single act of tender, and the party refusing is entitled to and can recover the property; but not so in case of disagreements between employers and overseers, or mechanics. The party offering can only make a commencement of service, without any certainty of its being completed; and the party refusing, on account of his own default, can have no remedy against the other to enforce performance.

Contracts for overseers’ wages are not, it is believed, now at least, generally considered as entire—or incapable of apportionment. Bach, at least, is not the rule as now recognized in South Carolina; (4 McCord, 246-249; 2 Hill, 486;) or in Mississippi. (6 Smedes & Marshall.)

If an overseer were turned off at a season of a year when he could not get employment, then the damages awarded should be commensurate with the sum which had been contracted to be given. But the rule for estimating his compensation, is not the contract price for the whole period, but the damages and loss actually sustained—not however to exceed the amount to which he would have been entitled, had the contract been fulfilled. Where the overseer is discharged at an early period in the term, there will be very few cases in which his loss will be equal to the whole amount of the contract price—as there will be but few cases in which an industrious man will not, for the greater part of a year, be able to find enr ployment.

There was no damage proven in this case, by the plaintiff, nor was there any attempt by the defendant to show that no damage had been sustained. There is very little satisfactory evidence in the case. Judgment reversed and cause remanded.

Reversed and remanded.