Kennedy v. South Shore Lumber Co., 102 Wis. 284

Kennedy v. South Shore Lumber Co.

102 Wis. 284 | Wis. | 1899

Marshall, J.

Assuming the view of the learned trial court to be right, that plaintiff, under the terms of the log sale contract, became the employee of the parties thereto the same in all respects as if they bad personally jointly employed Mm instead of bis having been designated as scaler by the mutual agent, Cochran, and that .neither of the joint employers, without consent of the other, could terminate the contract of employment,— and such is obviously true if the familiar principle applies that consent of parties to a contract is as essential to terminate it as to make it,— still that does not militate against the power of any party to a contract once made, to commit a breach of it and make himself liable in damages therefor, to be assessed according to familiar rules governing such a situation. If, according to the court’s construction of the contract, it was not termi*288nated by the conduct of the South Shore Lumber Company, it was breached by such conduct. Thereafter plaintiff did not perform any work under the contract. He was not permitted to do so. His cause of action, if he had one, was not for wages earned for work done, but for damages for loss of opportunity to labor and earn wages. In assessing such damages, the limit was such damages as could reasonably have been considered to have been in contemplation by the parties, at the time of making the contract, as the probable result of the breach of it. No principle of law applicable to contracts is better settled than that. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214; Bradley v. C., M. & St. P. R. Co. 94 Wis. 44. Applying that principle to the facts of this case, it is readily seen that the damages reasonably in contemplation of the parties at the making of the contract in the situation indicated, did not exceed the time it would ordinarily have taken to have scaled the logs in the general course of business. The idea that it included several months’ time, waiting around, watching for an opportunity to do work that plaintiff was notified he would not be permitted to do, is quite novel, and cannot be sustained as good law. The learned court misconceived the rights of plaintiff under the circumstances, even upon the construction of the contract that was supposed to rule the case, in holding that plaintiff was entitled to wages for work under a contract instead of damages for not being permitted to work. That grew out of failing to distinguish between terminating a contract and committing a breach of it. The South Shore Lumber Company could not terminate the contract of hiring without the consent of the joint employer, if the principle applies to the situation stated before in this opinion, but either joint party could commit a breach of it, rendering both such parties liable in damages to plaintiff; and upon settlement between such joint employers, the one at fault would be chargeable with the loss.

*289It follows from what has been said that the judgment must be reversed in any event, as it clearly appears that the time it would probably have taken plaintiff to have done the work he was prevented from doing does not exceed twenty or thirty days. Further, plaintiff was not entitled to a lien judgment except for the time he worked on the logs. Lienable claims under the statute do not include damages for breach of contract, but wages earned under contract of the kind of work mentioned in the statute. The same rule applies to lienable claims on logs and lumber under sec. 8329, R. S. 1878, as on buildings under secs. 3314, 3315. Siebrecht v. Hogan, 99 Wis. 437.

It is further considered that the judgment must be reversed for misconstruction of the log sale contract on the subject of whether one of the joint employers possessed authority to discharge plaintiff without consent of the other. The learned trial court held that the express language of the contract, giving to each party the right to insist on a change of scalers, referred only to the scaler mutually agreed upon, and not to the one designated by Ooehran.' The idea in the judicial mind seems to have been that however unsatisfactory to a party the scaler appointed by one method might be, such party was powerless to obtain any relief, while in case of a scaler appointed by another method such party could insist upon his discharge at any time in the event of his being unsatisfactory. That construction is too unreasonable to be adopted if the language of the contract will reasonably admit of another that does not involve the infirmity suggested. It is considered that it does admit of such other construction, or, to state it more accurately, that the plain, unmistakable meaning of the. language used by the parties is that each party was given authority to insist upon a change of scalers when dissatisfied with one previously appointed, and without regard to the method of ap*290pointment. The language in that regard is general, as follows : “ If the scale of cmy person selected under this contract to make said scale shall prove unsatisfactory to either party, then such party shall have the right to insist upon a change of scalers, and a new scaler shall be appointed.” The language, considered by itself, or with its context, does not reasonably admit of an exception. If the parties intended to deprive themselves of the power to severally insist upon the discharge of a scaler designated by Cochran, and retain such power in case of one mutually agreed upon, it was very, easy to have said so; but they did not so say. On the contrary they reserved, without exception, the power to severally insist upon a change of scalers, and when plaintiff accepted the appointment by Cochran he- became a party to that arrangement. Hence when the South Shore Lumber Company notified him that his services were no longer wanted because as a scaler he was not satisfactory to such company, the contract of employment was, by its plain terms, terminated.

There are other matters which appear by the record proper for mention, though not necessarily in the case. It does not appear that any rate of wages was expressly agreed upon with plaintiff. For aught that appears, his compensation for the time he actually worked was limited to the reasonable value of his services according to the going wages for that kind of work. Cochran had no authority whatever to do more than merely to designate the scaler. That act brought plaintiff into contract relations with the parties to the log sale contract and entitled him to going wages for work performed while it continued, and damages for the breach of it on the same basis, unless diminished by wages he had, or reasonably might have, earned elsewhere. Of course, if Cochran agreed with plaintiff as to the amount of his wages, and that was consented to by the joint employers, *291it was binding npon them; bnt he had no authority to do that by anything contained in the written contract. It is quite probable that on the evidence alone plaintiff was not entitled to a verdict at all, for he testified that the time he claimed wages for was between July 14th and October 4th, during which time he did not perform any labor, and before which he was rightfully discharged. But the complaint covers from June 12th to July 14th, and defendant’s counsel admitted $11.52. due plaintiff for work performed during such time, and moved the court to direct a verdict accordingly. The denial of such motion under the circumstances was error, but this being a jury case, and there being no verdict upon which a judgment can be rendered, there must be a new trial in accordance with the uniform practice in such circumstances.

By the Court.— The judgment appealed from is reversed, and the cause remanded for a new trial.