38 La. Ann. 867 | La. | 1886
The opinion of the Court was delivered by
The substantial allegations of plaintiff’s petition are to
The preliminary injunction was accordingly issued.
Defendants moved to dissolve the injunction on the ground, amongst others, that the petition disclosed no cause of action ; and, reserving the benefit of this rule, defendant Philbin answered by general denial; and defendant, Allen, in addition to such denial, specially denied the contract set up and payment alleged, and averred “ that he hired the services of plaintiff as a laborer and mechanic of the cemeteries, to do the work usually done by a sexton, but that said Ilealy so neglected the same and so misconducted himself on divers occasions towards respondent and persons owning lots in said cemeteries that respondent found it necessary to discharge him.”
The rule to dissolve having been dismissed, the case went to trial on the foregoing issues, and judgment was rendered in favor of plaintiff perpetuating the injunction.
From no point of view, under the evidence in this case, can the relation between the parties herein be regarded as other than a contract for personal service. Plaintiff is not the owner nor the lessee of the cemeteries; he is simply charged with certain duties in the administration thereof, for the proper performance of which he is necessarily answerable to his superior. The position of sexton is not a franchise which can only emanate from governmental authority ; nor is it a public office, whicli must have a like origin.
Even if it were assimilated to a private office, sueli as an office of a corporation, that would not exempt the holder of it from the character of being an employee or destroy the right of the employer to dis
If it were true, as alleged by plaintiff, that owing to incidental advantages accruing to him in his trade of marble-cutter, he had paid for the privilege of being appointed to the place for a term of years, that would not relieve him from the relation of an employee subject to the control and direction of his employer in the discharge of his duties with the consequent right of removal for cause.
The reasons for the recognition of this power are two-fold: 1st., that the employer is responsible for the wrongful acts of his employee; 2d., that the employer has the right to have his business properly transacted and that the only adequate security for this lies in the power of discharge, subject of course to legal responsibility in case the discharge is wrongful or without cause.
Hence the wise and universal rule that injunction is not allowed as a remedy to enforce or prevent the breach of contracts for personal service.
This principle has been applied by this court in a case where the owner of a plantation liad contracted with another, in writing, to take charge of his plantation for a term of eight years, to reside thereon with his family, and to have exclusive control and direction of all the business affairs appertaining thereto during said term. Alleging that the owner was about to supersede and forcibly dispossess him, and to remove his family, without cause, and before the expiration of the stipulated term, the plaintiff invoked the remedy of injunction, but this court said : “ We are not aware of any right the plaintiff has under the contract to be maintained in the possession and control of the defendant’s plantation against his will. If the latter think proper to violate his engagement with the plaintiff, he would thereby subject himself to damages.” Seiler vs. Fairex, 23 Ann. 397.
Even, however, if we were to take a more liberal view of plaintiff’s rights under the peculiar contract alleged by him, he would yet encounter other fatal obstacles to the allowance of the remedy by injunction.
Courts proceed, with great caution, in applying such a remedy for the enforcement of mere personal contracts, and act only in clear cases of legal right and for the prevention only of irreparable mischief,
And if the contract is uncertain and vague in its provisions, the relief will be withheld.” High on Injunction, § 1107.
We are unable to discover any injury to plaintiff from the threatened discharge, which could not be adequately compensated by damages , and, moreover, the contract, and the correctness of plaintiff’s construction of it are very far from being free from doubt.
We have never seen a more conspicuous instance of the painful conflicts of evidence which so frequently arise since the law removed disqualifications of interest and admitted the testimony even of the parties themselves.
The contract between the parties was oral and without witnesses. Their own statements as to its terms contradict each other diametrically, and each gives a contrary interpretation of various facts and circumstances which are invoked as corroborating either theory. We are not called upon, in this case, to weigh and determine the preponderance of testimony, but content ourselves with saying that the case, on the evidence adduced, has not that clearness and certainty of proof which would make it proper for the application of the remedy of injunction.
We say this without precluding either party on any question which may arise in an ordinary action for breach of contract.
Another inflexible rule as to injunctions in such cases is that “lie who seeks to enjoin the violation of an agreement, or for the protection of his contract rights, must himself come into court with clean hands, and must have carried out, as far as possible, his own part of the contract.” High on Injunction, § 1119.
The evidence in the record seriously impugns the conduct .of plaintiff in the discharge of his duties, and, without deciding its sufficiency as a cause for discharge, we consider it a sufficient bar to relief by injunction.
Although these questions of law have been slightly referred to by counsel on either side, the importance of the case as a precedent has made it our duty to consider them, and to establish the principles applicable in such cases.