Long v. Lewis

16 Ga. 154 | Ga. | 1854

By the Court.

Benning, J.

delivering the opinion.

The motion for a non-suit in this case, was put on two grounds: First, that-the contract sued on,'was one which was not “to be executed within a year from the making of it”, and yet was not in writing. Second.'That “the plaintiff’s testimony proved that lie left the employment of defendant without any cause, and at his own option and will.” '

[1.] As to the first ground, it is sufficient to say, that it does-not appear, from the declaration, or the proof, that the contract was not in writing. The contract may have been in writing. And as an illegal act is not to be presumed, it is not to be presumed that the contract was not in writing. (2 Saund. Pl. and Ev. 126.)

Tills ground, therefore, was not sufficient to support the motion.

As to the second ground:

The only “ cause” which the defendant in error, by his proof, showed for failing to perform his part of the contract, was this saying -of the plaintiff in error, in conversation with the witness Gallman: “In a conversation with the defendant, he told me he had told one of the negroes to tell plaintiff if he did not do better, he might leave.” The witness'added, “ He said plaintiff'had left, and we, were talking about his leaving, the way the conversation commenced. He said plaintiff had gone to sleep in the new ground.” This is all the cause. And this is not enough.

First. It does not appear that the negro ever delivered the message. Second. The message, if delivered, imported a permission — not a command — a permission to leave, if he, the overseer wished to leave — in other words, imported a willingness on the part of the employer, to cancel the agreement. Third. But. a willingness to cancel it, only on condition — on the condition that the overseer “did not do better.” The employer having reference, doubtless, to the overseer’s having ■“gone to sleep”, and in the new ground. If the overseer was willing to do better than going “to sleep” in the new .ground showed him to be doing, the employer, was willing for him to stay; and in that case, the employer did not offer the overseer the option of a rescission.

This evidence did not make out the allegations of the overseer in his declarations — the essential allegations that he was ready to perform his part of the contract, but was not permitted to perform it by the employer. On the contrary, it disproves those allegations. It shows that the overseer left his employer in such a way, as at the very least, to deprive himself of all claim on the employer for any pay, except for the time he had stayed with the employer. But his suit was for pay for the whole time — was for the full amount agreed to be paid him for the service to be rendered for thirteen months.

£2.] This being so, the second ground of the motion for a non-suit was good, and the non-suit on it should have been granted.

Was tbe verdict contrary to the evidence ? This was one of the grounds of the motion for a new trial.

[3.] We think it was.; Weak as was the case of the plaintiff below, as made by his evidence, it was rendered still weaker,, if that were- possible, by the evidence of the defendant.

According to the evidence of the defendant, the defendant “ did not want him (the plaintiff) to quit, but. he did quit and according to that evidence, the defendant “ treated him well:” According to that evidence, his reason for leaving his employer was, that “ he could not got along with some of the family.” But that evidence shows nothing in the conduct of any of the family; sufficient to prevent him from performing ,his part of the contract.

As to the ground with respect to the Statute of Frauds, the •same may be said of it that was said of the same ground in the motion for a non-suit." There is nothing in the evidence to show that the contract was not in writing.