184 Mass. 337 | Mass. | 1903
This is an action for breach of a written contract, dated May 29, 1891, whereby the defendant agreed, in settlement of claims which the plaintiff had against it for personal injuries while in its employ as freight brakeman and freight conductor, to employ him as station agent at its station in Fairlee, Vermont, so long as he should perform the duties of the place in a thorough, honest and businesslike manner. The plaintiff began work as station agent at Fairlee on June 10,1891, and was discharged on June 16, 1898. The defendant justified the discharge on the ground that he had been guilty of a number of shortcomings extending over nearly the whole of the period of his service. The case was sent to an auditor. It afterwards came on for trial before a jury. The jury were unable to agree, whereupon the judge directed them to find a verdict for the defendant, and the case comes here on an exception to that ruling. In submitting the case to the jury the presiding judge ruled that if the plaintiff was entitled to recover they could give him nominal damages only.
We are of opinion that the judge was wrong in directing a verdict for the defendant.
The contract sued on was made in Vermont and was to be performed in Vermont. The law of Vermont is the law which
The auditor’s report was put in evidence at the trial, and no evidence was introduced there to contradict or control this finding of fact.
The last breach of duty on the plaintiff’s part prior to the letter of June 4, which the defendant relies on in connection with the plaintiff’s previous shortcomings as a justification for discharging him, was in connection with the plaintiff’s duty as telegraph operator at the station in question. The defendant was under a contract with the Western Union Telegraph Company to furnish a competent and reliable man to do their work, to be paid by the telegraph company.
On May 28, the defendant asked the plaintiff for an explanation of a delay in a message held at White River Junction from 2 P. M. May 26, until 8.05 A. M. of May 27, “ on account of that office being unable to raise you.” The plaintiff’s explanation was that he was away on that day and his man might have plugged the telegraph instrument while talking over the telephone and have forgotten to take it out when he got through speaking on
We are of opinion that the plaintiff is right in his position that the defendant elected not to discharge the plaintiff for the breach of duty in connection with the despatch of May 26, and the question arises whether the letter of June 4 was a breach of duty on the part of the plaintiff which, taken with the previous shortcomings for which the defendant had elected not to discharge him, justified his discharge under the law of Vermont.
The defendant has argued that under the findings of the auditor the question for the jury was whether the letter of June 4, taken in connection with the previous delinquencies for which discipline marks were imposed, justified the defendant in discharging the plaintiff. The finding relied on here is that matters for which discipline marks were applied were not waived. But this and the preceding finding.“ that until the use of discipline marks, the defendant, by continuing to employ the plaintiff after knowledge of his delinquencies, waived the same,” are conclusions of law and are inaccurate, if not wrong. By continuing to employ the plaintiff after knowledge of his delinquencies, whether before or jifter the use of discipline marks, the defendant elected not to discharge the plaintiff for those shortcomings but, as matters to be taken into account in case of a subsequent breach of duty, they were not waived. By continuing to employ the plaintiff after knowledge of a breach of duty the defendant waived its right to discharge him for that, but it did not waive the breach of duty, and in case of a subsequent shortcoming bn the plain
The question therefore arises whether the letter of June 4, alone or in connection with prior shortcomings of the plaintiff, justified the defendant in discharging him; and we are of opinion that it did not.
On June 4 the plaintiff wrote to the defendant this letter:
“ Fairlee, Vt. June 4 8. H. E. Folsom, Supt. Lyndonville, Vt. Dear Sir: —I think you ask to much for $30.00. I am ready to step out for 30 days if you will send a man to relieve me. There can no man do the R. R. Co’s work & live for $30.00 here. I have tried to explain to you the additional business this station is doing, since I first took it, you agreed to deal with me fairly as to increase of compensation, as business materially increased. You have declined to do this, now I will take the matter up with some one else. You know & I know this station should pay not less than $45.00. Will you please send man to commence June 16. Yours, W. H. Daniell.”
To understand this letter and give it its proper construction it ’ becomes necessary to state that there was the following provision in the contract sued on : “ in case of an increase or decrease of wages of station agents through the whole Passumpsic Division of said road, the compensation above named shall be subject to the same, and in case the business at said station should materially increase, said Daniell shall be fairly treated as to increase in compensation.” There was evidence at the trial that the business at Fairlee had increased forty per cent and that beginning with a letter from the plaintiff to superintendent Folsom, dated December 31, the plaintiff had insisted that he was entitled to have his wages of $30 a month increased to $45 a month. This was refused by Folsom because there had been an increase in the work of other agents on the same division without an increase of pay. Six letters were written back and forth on the subject, between December 31, 1897, and January 27, 1898. Then the matter seems to have been dropped until May 25, 1898, when the plaintiff wrote to Folsom a letter which was not put in evidence but which Folsom answered on June 3, as follows: “I cannot consent to any increase in the way of an additional man at your station before July 1st, but will then consider it.” The
The tone of the letter of June 4 is not all that it should be, but it cannot be taken to be so wanting in respect as to be an act of insubordination having the discipline of the railroad in mind, and it seems to us that it is only as such that this letter could be argued to be a breach of duty. It may well be that the plaintiff was sinceré in thinking that he was entitled to an increase of pay, and the tone of the letter may be explained although not justified by the fact that the superintendent’s refusal to give the plaintiff an additional man and his imposition of discipline marks for the delay of the telegraphic message on May 27 were received by the plaintiff on the same day. The defendant has made no argument on this point and we take up the only arguments which it occurs to us can be put forward in its support.
It is not necessary to consider whether under the rule of Daniels v. Newton, 114 Mass. 530, and Ballou v. Billings, 136 Mass. 307, the defendant could have rescinded the contract had the plaintiff’s letter of June 4 been a notification of his refusal to work for thirty days after June 16, (which we assume would have been a breach of the contract, Johnson v. Walker, 155 Mass. 253,) and whether, in case the defendant had a right of rescission, the plaintiff had a right to retract his notice by the subsequent letter of June 9, which he testified was written before Folsom’s letter of June 10 was received. In our opinion the letter of June 4 was not such a notification. In the letter of June 4 the plaintiff wrote: “ I am ready to step out for 30 days if you will send a man to relieve me,” and “ Will you please send man to com
The only contention made by the defendant in support of the ruling that nominal damages only could be recovered is that the elements of damage are too uncertain, and it relies on the case of Bolles v. Sachs, 37 Minn. 315. But the case of Carnig v. Carr, 167 Mass. 544, decides that they are not. The contract in question in Carnig v. Carr, as in the case at bar, was a contract where the plaintiff had the option of continuing in the defendant’s employ or not. It was held that it was enough that the defendant agreed to give him permanent employment if he wished it. The plaintiff had a right to permanent employment and is entitled to damages for being deprived of that right. See also Johnson v. Walker, 155 Mass. 253.
Evidence of the probable length of life of a man of the plaintiff’s age might be relevant on the question of damages. But the question was not how long the plaintiff would be able to breathe but how long he would be able to work, and by the terms of the contract his employment was not so long as he could work but so long as he should perform the duties of the place in a thorough, honest and businesslike manner.
Evidence of the plaintiff’s income from the railroad, the express company, the telegraph company and from his outside business during the last year prior to his discharge and his income during the first year after, was offered and excluded. Under the decision that the defendant elected not to discharge the plaintiff for his derelictions of duty, if it was found that he had been derelict, the question of the admissibility of this evidence will not come up again as it did at the trial under consideration, and the question raised by this exception need not be discussed now.
■The other questions of evidence argued are not likely to arise in precisely the same way, and need not be passed upon.
Exceptions sustained.