122 Iowa 643 | Iowa | 1904
Plaintiff and defendant entered into a contract whereby plaintiff agreed to work for tbe defendant for an indefinite period of time at the agreed compensation of $73 per month. It was further agreed that, if either party desired to terminate the contract he should give the other thirty days’ notice thereof, and at the expiration of said thirty days the employment should cease. The contract was
“Dear Sir: Tours asking for route cards received. I will endeavor to put a few route cards in each letter hereafter, so you will not run out of these cards.
“I am in receipt of a letter from Mr. Pickering suggesting that I call your attention to tbe fact that according to tbe terms of your contract, that was, that you were entitled to thirty days prior to such time as we may see fit to dispense with your services, and owing to tbe condition of small grain and short trade, probabilities are that we will not need you longer than tbs time necessary for you to complete your contract after this notice; therefore, please consider this a thirty-days notice. Probabilities are, that we may need your services longer than tbe fifteenth of August, but this cannot be determined until later, as it will depend entirely upon tbe condition of trade. I consider that you have done well for tbe time you have been with us, and if tbe season bad been more favorable undoubtedly we would have continued to use you much longer.
Plaintiff, as we have said, continued to work until August 31st, but on August 16th be wrote defendant as follows:
“If I have to work any length of time after tbe 15th I wish to know it”
Defendant did not immediately respond to this, but on August 29th wrote as follows:
“Dear Sir: We are compelled to dispense with your services for the present, and inasmuch as you have received notice to this effect some time ago I presume that you are not disappointed. Please send in your final expense account and we will settle with you up to this date. Yours very truly, Tbe Cedar Rapids Supply Company.”
Plaintiff seeks to recover compensation for tbe month of September! Tbe trial court instructed,- in effect, that de
One other ruling is complained of; and tbat, tbe denial of defendant of a right to prove tbat plaintiff was intoxicated in .the month of June. As this was not given as reason for discharging tbe plaintiff, and as there was no such defense pleaded, this ruling was clearly correct.
Tbe only other question in tbe case is tbe correctness of tbe court’s instruction regarding tbe waiver of tbe alleged termination of tbe contract. For tbe purposes of tbe case, it must be assumed tbat the notice was sufficient to terminate tbe contract, and tbat defendant, if bound at all, is to be held liable by reason of its waiver thereof. It is said tbat defendant bad tbe right either to terminate tbe contract and insist upon tbe forfeiture, or to waive the forfeiture and continue tbe plaintiff in its employ, but tbat be could not do both, and tbat, as there was no new arrangement made, it will be assumed that plaintiff continued to work under bis contract, and could not be discharged in violation of the terms thereof. Further, it is argued tbat, as defendant permitted plaintiff to remain in its employment after knowledge'of the forfeiture without insisting upon it, it waived its right to rely upon tbe termination of tbe contract. The case is not really one of forfeiture, and tbe ordinary rules with reference thereto do not apply; tbat is to say, it is not a case for application of tbe doctrine tbat forfeitures are not favored, and must be clearly established before they will be enforced. Tbe question is purely one of waiver, or, rather, of right to recover on a contract for services not in fact performed. Liability is predicated upon the idea tbat plaintiff was wrongfully discharged before tbe expiration of bis term of service. His contract was terminated, and bis right to insist upon the thirty-days’ notice was fulfilled. Tbe claim now is tbat, by accepting further service from him, the contract was renew
Looking now'to the correspondence between the parties, it will be observed that defendant gave plaintiff notice in which it stated, in rather polite terms, it is true, that this was the thirty-days’ notice required under the contract. But it also stated that they might, and probably should, need his services for some time in the future, but that could not be determined until later on. On the 16th day of August the plaintiff inquired as to future services. No answer, other than to continue the plaintiff in the employment, was made until the letter of August 29th, which referred again to the letter of July 15th. Surely a jury might be justified in finding that the original contract was terminated by the notice; and that plaintiff continued in defendant’s employment after that time as a mere favor, and that such employment should
The court was in error in its instructions, and the case is therefore keveksed.