Marx v. Miller
134 Ala. 347
Ala.
1901
Check Treatment
TYHON, J.

It is thoroughly settled in this State that when a person contracts to perform personal services for another for a specified term, at stipulated wages and is discharged, without; fault on her part, before the expiration of the term, she may treat the con-trait as broken and at an end, and immediately sue and recover all the damаges she may have sustained up- to the time of the trial. But she is not compelled to accept the breaсh of her employer a¡s a termination of the contract,; she may elect to treat it as continuing and keеp himself in readiness to perform the contract on her part. Davis v. Ayres, 9 Ala. 292; Martin v. Everett, 11 Ala. 375; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194; Strauss v. Meertief, 64 Ala. 299; Holloway v. Talbot, 70 Ala. 389; Wilkinson v. Black, 80 Ala. 329; Morris Mining Co. v. Knox, 96 Ala. 320.

It will be noted that in the case under consideration the plaintiff counts alone on the breach of the contract, treating it as broken by defendant and at an «miel!. The complaint contains only one count and there is no recognition of the continuing existence of the contract, no attempt to recover upon it as such, or for wages on account of construсtive services rendered it; but as we have said, it is to recover damages arising out of a breach of it by defendаnt. • Where this is the case the averment of the making of the contract, its terms and its breach ‍​​​‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌‌‌​‌​​​​​‌‌‌​‌‌​‌‌‌​​‌​‌‌‍by the defendant and the рlaintiff’s willingness and ability to perform at the time of the breach is all that is necessary. . While it is doubtless true where the plаintiff sues upon the contract, for full compensar tion for a stipulated term, which suit cannot, of course, be mаintained until after the expiration of such term, the complaint must aver a readiness and willingness on the part, of the plaintiff to perform the services throughout the term he bound himself to serve, this averment is not necessary where the action is, as here, for a. breach *352of the contract by defendant, treating it as terminated. Pierce v. Tenn. Coal, Iron & R. Co., 173 U. S. 1; DePyster v. Pulver, 3 Barb. 284; 2 Chitty. on Cont, (11 Am. ed.) p. 1080 amid note. Non is it necessary that the complaint should аllege that the plaintiff used reasonable diligence to obtain the same or similar1 employment after her discharge by defendant. As to whether she could have obtained the same or similar 'employment, is a matter* of defense. — Strauss v. Meertieff, supra; Wilkinson v. Black, supra; 13 Ency. Pl. & Pr. 916 and notes; 1 Am. & Eng. Ency. Lаw (2d ed.), 1106-7. The demurrer to the complaint ‍​​​‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌‌‌​‌​​​​​‌‌‌​‌‌​‌‌‌​​‌​‌‌‍as origimlailly framed was properly overruled.

Nor was there any error of which the defendant can complain, in the overruling of his motion to strike a certain paragraph from the сomplaint. It was immaterial and should have been treated as mere surplusage. Being surplusage the denying of the motion is not revisadle. — Davis v. L. & N. R. R. Co., 108 Ala. 662. If it was conceived by defendant to- be- material, but defective*- in ‍​​​‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌‌‌​‌​​​​​‌‌‌​‌‌​‌‌‌​​‌​‌‌‍averment, the defeсt- could not be reached by motion. — 14 Ency. Pl. & Pr. 91. He should have taken advantage of the sup-posed defect by аn objection to evidence offered in support of allegations contained in it or by charge;-. — Daughtery v. Am. Union. Tel. Co., 75 Ala. 168.

It will doubtless, be said that оbjection was made, and an exception reserved, to the statement of plaintiff introduced to- prove the allegation in the paragraph that at “this ‍​​​‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌‌‌​‌​​​​​‌‌‌​‌‌​‌‌‌​​‌​‌‌‍season of the year it is difficult, if not impossible to obtain any like sеrvices for the unexpired term of her contract.” This exception, however, will be disposed of later.

The contract between thei parties was in writing. By its terms the defendant bound himself to pay the plaintiff eighteen hundred dollars for the year beginning September 1,1900, and ending September 1, 1901, to be- paid weekly or monthly at the plaintiff’s election; and the plaintiff obligated herself “to take charge of the dress-* making department” of defendant, “as manager1 and dress-maker,” with power to- employ and discharge the *353employes itm said department and to have entire management and control of the department, bnt to confer and advise with defendant from time to time witn referenсe to the best interest of said department of said business. It is entirely plain from the foregoing statement of the cоntract which is a substantial copy of it, that the plaintiff was not employed as a, dress-maker, but as superintendent оr manager of the defendant’s dressmaking department which the evidence shows was. operated by him in connection with his other mercantile business. The word “dress-maker,” when taken in connection with the entire context of the cоntract, cannot be construed as meaning that she was employed as a seamstress'. Indeed, should we confinе our reading of the contract to the sentence in which it is found, to-wit, “In considera.tion of the above 'employment, the said Martha E. Miller, party of the second part, is to take charge of the dress-making department of thе party of the first part, as manager and dress-maker, in his business ‍​​​‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌‌‌​‌​​​​​‌‌‌​‌‌​‌‌‌​​‌​‌‌‍at Birmingham, Alabama,” it is entirely clear that the words “as manаger and dress-maker” are merely descriptive of the position or office which the plaintiff ivas to fill, and1 impоsed no obligation upon her to do' the work of a seamstress. The1 testimony shows Avithout dispute that defendant discharged the plaintiff because of her refusal to do the work of a seamstress. This, as ive have said, she urns under no duty to- do. under tlie contract. She, therefore, had the right to refuse to. do it and her discharge for this refusal was. a breach оf the contract by the defendant Avhich rendered him liable in damages, to. her. On the undisputed faot.s. she would1 have been entitled to have had the court charge the jury affirmatively to find a Arerdict in; her favor. This being true, the exceptiоn reserved by defendant, to the introduction and exclusion of testimony, which did not in- the remotest degree tend to, prоduce a conflict, in the evidence under which plaintiff was entitled to recover, are of no avail. The Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Glass v. Meyer, 124 Ala. 332.

It is scarcely necessary to say in conclusion, there Avas no error in refusing the motion for a new trial.

Affirmed.