Ingram-Day Lumber Co. v. Rodgers

62 So. 230 | Miss. | 1913

Seed, J.,

delivered the opinion of the court.

In his declaration the appellee alleges that he suffered a personal injury by being run over by a hand car while in the employ of appellant as section foreman on one of its logging roads; that his claim for damages was settled by appellant agreeing to pay him for six months’ work at two dollars and fifty cents per day and to give him a permanent job of such kind as he could fill, to continue as long as he lived, or as long as appellant operated its mill, the pay of the job to be the standard wage of a like position filled by other employees; and that the wages for six months have been paid, but that appellant has refused to carry out its agreement to give him permanent work.

Appellant pleaded the general issue, and also filed a special plea, stating that full settlement had been made with appellee for all of his claims and damages, by the payment to him of the sum of two hundred dollars, and filed -with the plea, as Exhibit A thereto, an instrument,, duly signed by appellee, in which he acknowledged the receipt of two hundred dollars in full settlement of all claims for damages against the appellant on account of' the injury he received. A certificate to this instrument, signed by appellee and attested by two witnesses, states that he had read the paper and understood it, and that, he was satisfied with the settlement.

Appellee, in his replication to the special plea, alleges, that at the time he signed the release his eyes were in bad condition, and that he could not read and did not read the same, and that he understood the instrument was a receipt for the balance of one hundred and thirteen, dollars and fifty cents due him on the wages for six months at two dollars and fifty cents per day.

It is contended by appellant that the contract, as shown by the testimony, is not sufficiently certain in its terms is not an enforceable contract, nor one for the breach of which damages could be recovered; it is not shown therein what job Eodgers was to receive, nor what he was. to be paid therefor; in short, it fails to state material and necessary facts which would enable the court to determine precisely what the parties intended, and the jury to fix the amount of damages sustained by appellee.

In order to have before us fully and clearly the agreement which appellee claims was entered into by appellant, we quote from the testimony offered by appellee., plaintiff in the court below, on the trial of the case, relative thereto:

The following is from the appellee’s own testimony: “Q. State to the court and jury the terms of that settlement. A. The terms of it: They were to pay me for six months at the rate of two dollars and fifty cents per day, and give me a job as long as they were in business there, or my lifetime. Q. Go ahead and state the terms of the contract. A. They were to pay me six months’ work at the rate of two dollars and fifty cents a day,. give me a job for my lifetime, or as long as they were in business.”

The following is from the testimony of appellee’s son, Milton Rodgers: “Q. State what you heard in that conversation. A. Mr. Mitchell was to pay him six months’ full wages at sixty-five dollars a month, which amounted to about three hundred and ninety dollars, and he deducted all my father owed him out of this, which left one hundred and thirteen dollars and fifty cents he paid him in money, and also promised him a lifetime job, or so long as they were in business.”

The following is from the testimony by appellee’s wife: “Q. Did you hear any conversation about any settlement? "What the terms of it was to be? A. Yes, sir. Q. What was it? A. Mr. Mitchell asked him to settle with him, and he told him, ‘All right,’ he would settle with him if anyways reasonable; so he gave him one hundred and thirteen dollars and fifty cents to settle, and promised to give him a job as long as he was in bsuiness.”

The following is from the testimony of Ed Hart, a witness on behalf of appellee: “Q. What did you hear? A. I heard him tell him he need not worry about his job;' he had a job as long as he lived, or he was in business there, and able to go to work.”

When appellee rested his case, appellant moved the court to exclude the evidence, because the testimony did not show a contract sufficient to entitle the appellee to recover. This motion was overruled by the court. Likewise, at the end of the trial, the court refused to grant a peremptory instruction in favor of the appellant. The appellee demanded damages in the sum of two thousand dollars. The jury returned a verdict for five hundred dollars.

The court erred in overruling the motion and in refusing to grant the peremptory instruction for the.defendant. We do not see that the agreement, as shown by the testimony in this case, is sufficient in its terms to entitle the appellee to recover thereon. The contract is uncertain and indefinite. It does not show what job was to he given appellee, nor what amount he was to be paid for his services. The terms of the agreement are indefinite. According to the testimony, appellee was to be given a job for his life, or as long as appellant was in business at the place where then located. It does not show what special work was to be given him, nor what department of the mill or plant. It is well known that a sawmill company like that operated by appellant employs many men in a number of different positions and has several departments of work.' The wages of the employees vary with the work they are called upon to do.

Instruction No. three for the plaintiff, directs the jury to assess appellee’s damages “at. such a sum as they think from the evidence he is entitled to, which was caused proximately by the breach of contract by defendant.” As it is not shown in the contract what employment appellee was to be given, nor what wages he was to be paid, how could the jury have determined the amount of verdict rendered in the case? How can there be any intelligent ascertainment of the damages sustained by appellee on the contract which he claims he had with appellant?

We must keep in mind that this is a suit on 'a contract. The general rules governing contracts will apply. The terms of a contract must be complete and sufficiently definite to enable the court to determine whether it has been performed or not. The terms and conditions are not sufficiently definite, unless the court can determine therefrom the measure of damages in the case of a breach. This cannot be done in the present case. This contract lacks sufficient precision. There are not enough necessary and material facts stated to render it capable of enforcement.

Appellee’s counsel cites and relies on the decisions in the cases of Jackson v. I. C. Railroad Co., 76 Miss. 607, 24 So. 874, and Hayes v. Atlanta & Charlotte Air Line Railroad Co., 143 N. C. 125, 55 S. E. 437, 10 Ann. Cas. 737. In both these cases the job which was to be given to the plaintiff for life was specified. In the Jackson Case, the very place to be filled was designated, and Jackson was actually put to work for definite wages in the position, and held it for several years. In the Hayes Case it was shown that he was to be given work as a guard at a street crossing, and that he was to be paid twenty-five dollars per month for his services. It will therefore be seen that the facts of the present case are different from those in the Jackson and Hayes Cases. The difference consists of the absence in the present case of any stipulation specifying the position to be filled and the compensation to be received therefor.

This case, for the reasons stated, is reversed, and judgment entered here for appellant.

Reversed.