264 Mass. 98 | Mass. | 1928
This is an action of contract to recover damages as wages which the plaintiff would have received if he had been employed continuously by the defendant from January 18, 1926, until July 17, 1926. The answer is a general denial and an allegation “that the plaintiff acquiesced in, agreed to and accepted the alleged illegal suspension and was at the time the writ was brought barred from bringing any action from loss of employment.” The case is before this court on an appeal by the defendant from an order “Report Dismissed” of the Appellate Division of District Courts, Southern District.
As shown by the report, before January 18, 1926, “The plaintiff was . . . duly enrolled in the classified list of the public service of the Commonwealth and duly certified as a
At the close of the evidence the defendant, among other requests not now material, asked the trial judge to rule: (1) “Upon the whole evidence, the plaintiff is not entitled to recover”; (2) “When the plaintiff accepted employment for part time of varying extent he made it impossible for himself to gain employment for the part of the week he was not to be employed and therefore is not entitled to damages for the period of unemployment”; (3) “By accepting employment from the defendant for varying periods within a week and after varying times of suspension the plaintiff acquiesced in his suspension and induced the defendant to believe that no liability was incurred by the defendant”;
At the request of the plaintiff the judge, subject to the exception by the defendant, ruled: “That the acceptance of work by the plaintiff when work was given to him did not constitute acquiescence in the refusal of the defendant to employ the plaintiff at other times.” Subject to the defendant’s exception, the judge also made the following ruling and findings: “I find that no definite information as to the period of time the suspension was to continue was given to the . . . [plaintiff]; that . . . [he] expected from time to time or had reason to suppose that he might soon be employed in full time; that Lake . . . sought’additional days’ work from the street department at different times during said period of suspension but. . . [was] unable to obtain any .... There was no evidence presented at the trial to show that the . . . [plaintiff] acquiesced in . . . [his] suspension from time to time save the facts that . . . [he] worked for the two or three days each week that were allotted to . . . [him] without protest and took no steps to present or enforce any claim for damages for a period of eighteen months. I rule as a matter of law that . . . [his] conduct in' these respects did not constitute a waiver of . . . [his] rights or acquiescence in . . . [his] suspensions. And I find as a fact that . . . [he] did not acquiesce in . . . [his] suspensions.”
The defendant in its brief concedes that the plaintiff was not suspended in the manner and form prescribed by the statutes, and states: “This case is based upon and differs in principle only from Bois v. City of Fall River, 257 Mass. 471, in that in that case the question of acquiescence was not raised but was specifically eliminated in an agreed statement
The entry “Report Dismissed” is affirmed.
So ordered.