124 Me. 369 | Me. | 1925
The defendant, who is the proprietor of the Simard Bakery in the city of Lewiston, by a written contract under seal
The Motion.
When a laborer has adequate cause to justify an omission to fulfill his contract, such omission cannot be regarded as his fault, and he has a right to refuse to continue his employment. Whether or not adequate cause for such omission exists is a question of fact to be determined by the jury. Lakeman v. Pollard et als., 43 Maine, 467. In the instant case, upon the evidence the jury could have found that the plaintiff was required to perform duties outside of his contract and had adequate cause to justify his refusal to continue his employment, but that, after conferences with the defendant, at which he was assured he would not be required to perform the objectionable duties, the plaintiff waived his right to abandon the contract and by mutual agreement the parties resumed their relations and continued them under the original contract.
Assuming, however, that the plaintiff’s abandonment of the contract was found by the jury to be unjustified, it does not necessarily follow that the contract thereby became finally terminated. If one party abandons a contract and refuses to abide by it, that refusal will undoubtedly authorize the other party to rescind the contract and refuse longer to be bound by it. Simpson v. Emmons, 116 Maine,
Waiver is essentially a matter of intention, yet such intention need not necessarily be proved by express declarations. It may be inferred from the acts and conduct of the party. Acts and declarations manifesting an intent and purpose not to claim the supposed advantage or a course of acts and conduct or neglect and failure to act, such as to induce a belief that it was the intention and purpose to waive, will establish a waiver. Holt v. N. E. Tel. & Tel. Co., 110 Maine, 10; Burnham v. Austin, 105 Maine, 196. Adhering to his contention that his temporary abandonment of his contract was justified, the plaintiff urges that if the abandonment be found to be unjustified, nevertheless it was expressly waived by the defendant, and again he says that if there was no express waiver, the acts and declarations of the defendant at the time of the abandonment and thereafter until the plaintiff was discharged were sufficient to constitute a waiver under the foregoing rule. The jury returned a verdict for the plaintiff and of necessity either found that the plaintiff was justified in his temporary abandonment of the contract on December 10,1922, or the abandonment being unjustified, the defendant did not elect to rescind the contract because of the breach, but expressly or impliedly waived the plaintiff’s failure to perform. The discharge of the plaintiff being admitted, and no justification being shown, we find no reason to set aside the verdict.
In cross-examination of the defendant, the plaintiff was permitted to bring into evidence the fact that prior to the plaintiff’s discharge the defendant hired another baker to do the same work which the plaintiff was performing, but at a substantially reduced wage. To the admission of this testimony the defendant reserved an exception.
The reasons for the plaintiff’s discharge or the motives which prompted it were not in issue. The real question to be determined was whether the plaintiff’s employment at the time of his discharge was under the original contract and for a fixed term which had not expired or was for an indefinite term which justified his discharge as and when made. Upon this issue, the testimony objected to, we think, was incapable of affording any reasonable presumption or inference as to the facts in dispute and was not admissible. Provencher v. Moore, 105 Maine, 89. We think, however, that it was harmless and worked no prejudice to the defendant’s cause and for that reason this exception must be overruled. Bessey v. Herring, 121 Maine, 539, 541; Pierce v. Cole, 110 Maine, 134, 138.
Neither can we sustain the other exceptions reserved by the plaintiff. Taken in connection with other parts of the charge, the instruction of the court upon tjie question of waiver of a breach of the contract presents no error, and the requested instructions were properly refused. The latter present theories of law entirely inconsistent with the principles to which we have already expressed our adherence in this opinion, and to have given them as requested would have been manifest error.
Motion overruled.
Exceptions overruled.
