Doolittle v. Pacific Coast Safe & Vault Works

154 P. 753 | Or. | 1916

Mr. Justice Bean

delivered the opinion of the court.

1-6. As a general rule, in the United States, an indefinite hiring is presumed to be a hiring at will, in the absence of evidence of custom, or of facts and circumstances showing a contrary intention on the part of the parties. "While it is generally held that the fact that a hiring at so much per day, week, month or year raises no presumption that the hiring was for such a period, but only at the rate fixed for whatever time the party may serve, yet the rate and mode of payment are often determinative of the period of service, and in some cases it has been held that they do raise a presumption as to the period of service: 26 Cyc. 974. It is competent for either party to show what the mutual understanding of the parties was in reference to the matter of employment; but, unless their understanding was mutual that the services were to extend for a fixed and definite period, it is an indefinite hiring, and is determinable at the will of either party; but, when from the contract itself it is evident that it was' the understanding of the parties that the time was to extend for a certain period, their understanding, fairly inferable from the contract, will control: 2 Wood, Master & Servant, § 136; Barlow v. Taylor Min. Co., 29 Or. 132 (44 Pac. 492); Christensen v. Borax Co., 26 Or. 302 (38 Pac. 127); McKinney v. Statesman Publishing Co., 34 Or. 509 (56 Pac. 651). In order to show what the real understanding and intention of the parties was, all the facts and circumstances surrounding the parties and the transaction may be shown, as that the plaintiff was to the knowledge of the defendant seeking permanent position, and any facts and circumstances that tend to establish the mutual understanding: Franklin v. Harris, 24 Mich. 115; Fisk v. Henarie, 13 Or. 156 (9 Pac. 322); Flegel v. Dowling, 54 Or. 40 (102 Pac. 178, 135 Am. St. Rep. 812, 19 Ann. Cas. 1159); 26 Cyc. 969; Nash v. Kreling, 6 Cal. Unrep. 233 (56 Pac. 260).

7. In an action at law tried by the court without the intervention of a jury the findings of the court upon the facts import the same conclusiveness as the verdict of a jury: Section 159, L. O. L. When there is any evidence to sustain the findings, they will not be disturbed on appeal. In Kelly v. Carthage Wheel Co., 62 Ohio St. 598 (57 N. E. 984), the contract was evidenced by correspondence; the plaintiff making an offer which was accepted by the defendant. In his letter the plaintiff says:

“I will want you to guarantee me $3,000 per year, a proportion of this amount to be paid me each day, and a settlement to be made at the end of each year, and, if I should make more than the above guaranty, the difference be paid me at the end of each year, when settlement is made.”

Upon acceptance of this offer the plaintiff entered the employ of the defendant on May 1, 1892, and continued therein until September 31, 1893, when he was discharged. Having been paid what he had earned up to the time of his discharge, he brought suit to recover damages in the sum of $1,500 for the six months following. He secured a verdict for the full amount, which was sustained on appeal. In Kelly v. Carthage Wheel Co., 62 Ohio St., at page 610 (57 N. E. at page 986), the court says:

“And in the interpretation of contracts of this kind, as well as of all others, none of their provisions should be ignored or overlooked that serve to indicate the intention of the parties.”

In Du Pont v. Waddell, 178 Fed. 407 (101 C. C. A. 335), we find the following language:

“It is true, as said by counsel and sustained by authority, that, nothing more appearing, the language used by the parties would be controlling in fixing the duration of the relation of employer and employee. We must, however, look to surrounding circumstances, the relations then existing, the character of the employment, and if, after doing so, the meaning of the language used and the intention of the parties is doubtful, or capable of more than one construction, the question should be submitted to the jury. ’ ’

In Chamberlain v. Detroit Stove Works, 103 Mich. 124 (61 N. W. 532), quoted from in the Du Pont Case, we. find the following:

“What the relation was and how long it was to continue depended upon the original hiring, the subsequent relation, the nature of the services performed, and the mutual understanding- of the parties. As to duration, we think it was competent for the jury to determine from the evidence that the hiring was annual, and not subject to revocation or change by the board of directors or the president.”

8. In the present case the trial court, acting in the capacity of a jury, could properly take into consideration the nature of the employment, and the circumstances, as disclosed by the correspondence, which tended to show that at the time he was employed by the defendant he had a large family and was residing in California. He had a position which was apparently permanent. The manager of the defendant company had been associated with him in the business there, and was satisfied that he would make good. Both parties appear to have been negotiating with a view to making arrangements which were contemplated to continue for a considerable length of time. The statement that, “The place would be worth to you $175.00 per month for the first year, $200.00 the second year, ’ ’ under all the circumstances, would at least warrant a jury in concluding that the employment was for two years; in other words, the contract fixed a definite time.

9. Defendant takes the position that the manager of the corporation was not authorized to enter into this contract with the plaintiff. The evidence tended to show that Mr. Biddle had the sole charge of the plant and of the hiring of plaintiff, and that all persons interested in the matter acquiesced in the arrangement for 16 months. It is said in Herman, Estoppel, Section 800:

“No man can adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit.”

It is not shown that the by-laws of the corporation controlled the authority of the manager in this respect or made any provision relating to the employment of services. In 2 Thompson, Corporations, Section 1580, we find the rule:

“The power of the general manager, acting within the strict scope or the apparent scope of the corporate business about which and over which his employment extends, is practically unlimited as to the details of the business. In the internal management of the corporate business he has been held to have the right to exercise authority in the following instances: To employ clerks, servants and laborers and fix their compensation; * * to employ a superintendent of a mine; and to employ a foreman in a paper-mill. * * ”

The evidence tended to show that the manager had authority to make the contract in question, and the court, acting as a jury, having so found, the findings should not be disturbed.

Finding no error in the record, the judgment of the lower court is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Harris concur.