Glidden v. Meyer

110 Wis. 1 | Wis. | 1901

“WiNslow, J.

There were a number of exceptions taken to rulings upon evidence, which, however, are unnecessary to be considered, because, under the view we have taken of the case, they can in no way affect the result.

The action is one upon an entire contract of service, by which, in addition to monthly wages, the claimant was to receive $1,500 for acting as housekeeper until Mr. Griswold’s death, but was to receive nothing but monthly wages in case she left the position in Mr. Griswold’s house before his ■death.

That she left before Griswold’s death is undisputed; so it is clear that she did not perform her contract, and hence cannot recover on the ground of full performance on her part. The only other ground upon which she can recover anything more than the monthly wages earned before her departure is upon the ground that the testator actually and wrongfully prevented her from performing the entire contract.

The whole subject of the remedies upon entire contracts for personal services has been so recently considered by this court that it is only necessary to refer to the case here, without restating the rules there laid down. Hildebrand v. American F. A. Co. 109 Wis. 171. Had the testator wrongfully discharged her or turned her from the house, this would have been a prevention by the testator of the fulfilment of the contract on her part; but he did not do so. The claim is, however, that his conduct amounted practically to compelling her to leave, and the question is whether there is evidence which should have gone to the jury substantiating this claim.

The only facts in evidence which can be said to tend in that direction are that the claimant was sick and unable to do her work, though not confined to her bed, and that the testator did not provide help as he had agreed to do, and that he stated to others that she was only pretending to be sick. Would a jury be entitled to find from these facts that she was compelled to leave ? We think not. If there were evidence tending to show that she asked for help, and that it was denied, and that it was impracticable for her to stay at the house and be treated for her illness, we think there would be sufficient evidence of practical compulsion to go to the jury; but there is a total absence of testimony on those points. The claimant’s illness was not such as to confine her to the bed, and not such as to make it necessarily palpable to an observer that she was unable to do the work. She apparently called no physician. No one, so far as the evidence shows, informed the testator that she was unable to do the work. She seems to have performed the work required until her departure for the East. In this situation, the mere incredulity of the testator as to the serious character of her illness, and his omission to get help which was not asked, cannot, we think, afford any foundation for a verdict that he prevented her from fulfilling her contract.

We conclude that the nonsuit was properly granted.

By the Court.— Judgment affirmed.