83 Neb. 542 | Neb. | 1909
This is an action by an employee against his employer for damages for breach of the contract of employment. The material facts alleged in the petition may be summarized as follows: By exchange of letters in due course of mail plaintiff was hired for a year as a cutter and workman in defendant’s furriery in Omaha, upon the following terms: From August 1, 1905, to September 4, 1905, plaintiff was to receive $16.25 a week; from September 4, 1905, to January 20, 1906, $25 a week; and from January 20, 1906, to August 1, 1906, $16.25 a week. Plaintiff entered upon the duties of his contract and continued in defendant’s employ for a period of seven months, or until March 5, 1906, when he was wrongfully discharged in violation of his contract and deprived of
In the ansAver defendant admitted plaintiff was in his employ for seven months, but alleged he left it voluntarily March 3, 1906, confessing his inability to perform his duties, Avas paid in full for his services, and never afterAvards returned or offered to return to defendant’s employ. In addition the answer alleges: “Defendant denies each and every allegation in said petition contained, save and except as same may be admitted or pleaded to in this amended and substituted answer. * * * Defendant admits that after plaintiff left defendant’s employ he was engaged in other employment, but defendant does not know with whom he was employed, when, where or how long he was employed, or what compensation he received.” The allegations of defense are denied by a reply. The trial resulted in a verdict and judgment for plaintiff for $308.14. Defendant appeals.
The. question of the making of the contract was not submitted to the jury by an instruction, and this is assigned as error on the ground that it took from the triers of fact an issue raised by the pleadings. In this connection it is argued that the letters Avere erroneously admitted in evidence and that the' existence of the contract was not established. It was shown by competent testimony that the letters from defendant were received in due course of mail in answer to letters written to him by plaintiff, and that in pursuance of defendant’s correspondence plaintiff came from Minneapolis to Omaha on
Another point earnestly presented by defendant is the failure of the' court to instruct the jury that it was incumbent on plaintiff to prove he was ready and willing to carry out his contract, notwithstanding he was wrongfully discharged. It is insisted this fact was in issue, with evidence on both sides, and ought to have been submitted to the jury by an instruction. Defendant did not ask for such an instruction, but insists that it should ha /e been given without a request. The record shows he did not except to the failure of the court to give such an instruction or raise the question in his motion for a new trial. This was a waiver of the error, if any. Barney v. Pinkham, 37 Neb. 664; Sanford v. Craig, 52 Neb. 483.
Complaint is also made that the law of avoidable consequences required the court to instruct the jury that a discharged employee must not only be ready and willing to perform his contract, but that he must be willing to accept other work, if he can procure it. Plaintiff by his petition and the trial court by instructions recognized the rule that it is the duty of an employee who has been wrongfully discharged in violation of his contract to make reasonable efforts to avoid loss by securing other employment. Plaintiff alleged in his petition that after he was discharged he obtained employment of various kinds at different places, stating the names of his employers and the amount received from each. He then alleged
Complaint, is also made of other rulings and instructions relating to evidence, but a careful examination of each shows that defendant has not presented a record disclosing any reversible error.
It follows that the. judgment must be
Affirmed.