44 So. 993 | La. | 1907
Plaintiff complains that, having been employed for a year, he was discharged without cause before the expiration of the year. He sues for the amount of the salary that would have accrued between the date of his discharge and the expiration of his contract.
Defendant’s first contention is that plaintiff’s employment was by the month. Plaintiff was elected secretary and treasurer of the D. H. Holmes Company, Limited. The duties of the office, were to attend to the finances of the company and see to its
“Yes; I think you are worth more money, and I will raise you to $6,000, and, when the reorganization takes place, they will probably take you at my valuation, and make no question.”
Negotiations dragged, .but by April 26, 1905, all had been perfected, and on that day the transfer from the old to the new company was made; the name of the new company being the same as the old, D. H. Holmes Company, Limited. The amount of stock held by plaintiff in the old company was $5,000. In the new company he was allotted $15,000. At the time the negotiations for the organization of a new company began the old company was undergoing some kind of liquidation, and plaintiff was one of the liquidators. As'such’he voted for the transfer to the new company. Assurances were given him on several occasions that he need not fear; that he would not be disturbed; that everything would be all right. This was by one of the gentlemen with whom the old company was negotiating. The condition upon which the transfer was made was that the new company took all the property and assumed all the obligations of the old — stepped into its shoes. And, accordingly the transfer brought no interruption in the business, but the employés of the old company, including plaintiff, went on .with their work as theretofore. Not a word was said to or by plaintiff about any change in his contract. The office of secretary and treasurer which he had occupied in the old company was not, however, perpetuated in the new, and hence, while he performed the same duties in the new as in the old, he did not do so under the same title, but merely as an ordinary employs. The directors of the new company called upon plaintiff for a list of the salaried employés who were earning as much as $1,000 per annum and more. Plaintiff says that this was either on the day of the transfer, April 26, 1905, or a day or two afterwards. The director to whom the list was furnished says it was before the transfer. On this list plaintiff put himself down as receiving a salary of $6,000 per an-num. No objection was made to this list, and no question was raised in connection with plaintiff’s employment, until July 6, 1905; plaintiff in the meantime continuing to discharge the duties under his contract. On that day plaintiff was called before the meeting of the directors of the new company, and was asked whether at the time Mr. Holmes had raised his salary he had given him a contract. Plaintiff understood the question to be whether Mr. Holmes had given him a written contract, and, as no writ-.
Defendant’s second contention is that plaintiff cannot recover because he did not put the defendant in default. Even if the present suit were purely upon the contract of employment, we would not think that plaintiff was under the necessity of making any further tender than he did. He insisted upon continuing to discharge the duties of the position, and in the most positive terms informed the defendant company, through its manager, that the only alternative for preventing him from doing so was to discharge him. After this, if there was to be any renewal of negotiations between the parties, the duty of making'the first move lay with defendant. But this suit is not purely upon the contract of employment, but also upon a special statute (article 2749, Civ. Code), the settled jurisprudence under which is that this right of action accrues immediately upon the discharge, and by the fact of the discharge — so much so that the employ® is free, from that moment, to employ his time elsewhere without detriment to his suit. Curtis v. Lehmann, 115 La. 40, 38 South. 887. Of course, if plaintiff had been aware that the directors had been misled by his answer ■to their question, a different case might be presented; but, so far as plaintiff knew, the defendant company when it discharged him was fully advised that it had with him a contract by the year. Plaintiff’s refusal to accept a one month’s salary — that is to say, his refusal to admit that his employment was by the month — and his refusal to resign, could mean nothing else than that he understood that he had a contract by the year, and this should have put the company upon inquiry before discharging him arbitrarily as to what was the true situation, and as to whether there had not been some misunderstanding. •
Judgment affirmed.