Higgins v. ShepardHiggins v. Shepard
- Reporters:
- , ,
- Before:
- Knowlton
This is an action to recover a balance of salary claimed by the plaintiff. The plaintiff сontended that she was hired by the defendants to serve as buyer in one of the departments of their dry goods business for the term of one year beginning on October 4, 1897, at a salary of $800 per year, рayable in monthly instalments. There was no dispute that she was discharged on July 1,1898, and the question controverted before the jury was whether the contract was absolute for one *366year, or whether it was a contract that would end at any time when either of the parties chose to terminаte it.
The evidence tended to show that the defendants expressed dissatisfaction with one of her transactions which occurred about June 15 or June 20, 1898. She testified that.Mr. Cole, one of the dеfendants, said there “ was carelessness on her part, arid she replied she did not think so; . . . after sоme talk, he said he wished her to resign her position; that she told him she did not see any reason why she should; that she was hired up to the first of October, 1898, and she did not see any reason why she should resign, and he sаid he did not understand that she was hired excepting month by month, and she replied that she understood it, and, thе way her salary was paid, any one would understand it that way, and that she should not resign ; that an envelоpe came from the office that evening with a letter and her money for the month of June; thаt the envelope contained her salary for June and informed her that her services would be no longer required after the first of July; that she sent the money back and wrote a letter to Mr. Sheрard and told him how her contract was; . . . that she should not resign and should not accept the monеy.” Precisely when this conversation with Mr. Cole was does not appear, but apparently it was soon after the twentieth of June. The plaintiff testified, against the objection of the defendant, that on June 27 “Mr. Cole came to her and said he wanted to advise her, as a friend, to go away quietly from the store the first of July, and not make any trouble about it; and he said to her, ‘We are willing to mаke a compromise and pay you for the month of July’; that she told him if he did not owe her for the month of July she did not wish him to pay her, and if he owed her for the month of July he owed her for the three months.” Thе court ruled that this evidence was competent as a part of a conversation bеtween the parties. “ The defendant then requested the court to rule, limiting the evidence simply tо the matter and talk between the parties, and not for the purpose to prove the liability of the defendants, or to show what the contract was, but the court ruled that if the evidence was competent for any purpose it ought to be admitted.” The defendants excepted.
Before this conversation of June 27 a controversy had grown *367tiр between the parties, in which the defendants twice claimed the right to discharge the plaintiff, and undertook to exercise that right by sending the money to her with a letter discharging her at the end of thе month. The plaintiff denied^ their claim, sent back the money, and claimed the right to continue her services and to be paid to the end of the year. The offer of compromise made оn June 27 is subject to the ordinary rule that it cannot be used in evidence against the party making it for thе purpose of establishing his liability. Gerrish v. Sweetser, 4 Pick. 374. Dickinson v. Dickinson, 9 Met. 471, 473, 474. Upton v. South Reading Branch Railroad, 8 Cush. 600. Gay v. Bates, 99 Mass. 263. Draper v. Hatfield, 124 Mass. 53. It is difficult to see how any part of the conversation was matеrial, inasmuch as the defendants did not deny, except by their pleadings, that the plaintiff was discharged from their service. But if the conversation was competent upon that issue, the defendants’ request that the offer of compromise should not be used in support of the plaintiff’s version of the contract ought to have been granted. We understand the answer of the judge to have beеn a refusal to grant this request. We are of opinion that this evidence should not have been submittеd to the jury generally, in view of the defendants’ objection and request, and that the exceptiоn should be sustained. •
The exception to the refusal to admit the letter must be overruled. It was not open to the defendants, upon the pleadings, to show misconduct of the plaintiff, and there is nоthing in the letter tending to contradict her.
We are also of opinion that the defendants’ requеsts for instructions to the jury were rightly refused. In the absence of any express stipulation in the contract, the question was not what was the understanding of the respective parties in fact, but what ought to have been their understanding in view of what was said and done under the circumstances in which they were placed.
It could not be said as a matter of law that “ the jury should find it was a contract by the year,” or that there was a condition inferable that it was terminable within the year upon notice by one of the parties to the other. What the conditions were was a fact to be ascertained from all the evidence.
Exceptions sustained.