Millert v. Augustinian College

36 Pa. Super. 511 | Pa. Super. Ct. | 1908

Opinion by

Orlady, J.,

This suit was brought by the plaintiff to recover the balance due on a contract made with the defendant, for services to be rendered as a teacher of languages in the defendant college, at a salary of $900 for the school year.

After rendering services for two months, and after receiving $140 in money, the plaintiff was discharged, the reason for such action by the college being that he was inefficient. The circumstances attending his discharge were described by the president of the college as follows: “In view of the fact that I had discovered him to be inefficient, I felt that was the termination, or cause for the termination of the verbal contract into which we entered in New York, and/ secondly, paying him in full for the time, on the basis of the year, paying him for the time he was there, I felt that I was giving him all that was justly due.”

The last payment of $50.00, was paid by a check dated November 19,1904, drawn to the plaintiff’s order, and marked “in full,” which was paid November 23, 1904, and which on examination 'by the maker was discovered to be indorsed “In full to date, Nov, 19, 1904.” The form of this indorse-meat was not known by the defendant until some time' after the check had been paid. At the time the check was given, payment in money was demanded by the plaintiff and refused because it was accompanied by a demand that the plaintiff should sign a receipt in full for all demands. The check was accepted under protest and the plaintiff alleges, that having no other source of income he was obliged to have it cashed, and, further, that he made an honest effort to secure other employment within the term mentioned in his contract, and failed. So that during that time he did not earn a penny. His claim was for the difference between $900, the annual salary, and $140 which he received, or $760 with interest. The verdict was for $460 in his favor. After a full review of the law and the facts, the court refused a motion for a new trial, as well as a motion for judgment notwithstanding the verdict.

It does not appear that any complaint or objection was made to the plaintiff’s performance of his contract until the day of his discharge, hence he was entitled to the amount of money represented by the check, whether he remained in the institution or not. His right to recover in this action is independent of his right to receive the $50.00 then paid to him. No services were rendered after that payment, and there is no question of a compromise of a disputed claim, or of an actual acceptance of a smaller sum as an accord and satisfaction: Martin v. Frantz, 127 Pa. 389. In Benseman v. Insurance Company, 13 Pa. Superior Ct. 363, the effect to be given to a check or receipt marked with the words.“in full” is elaborately considered, and the principles of law there announced are applicable to the present case. There was no relation of trust or confidence between the parties. There was a controversy between them. They were dealing at arm’s length. The plaintiff was loath to leave the employment. The defendant insisted that he should do so on account of his inefficiency. There was no attempt to adjust the plaintiff’s claim for the balance of the year. The check given him, marked “in full” has no special significance other than the interpretation put upon it by the plaintiff’s indorsement, “in full to Nov. 19, 1904,” and there is not a suggestion in this record that he accepted and used it with any other view than that it was a payment in full for services rendered to that date. There was no explanation as to what the term “In full” signified, and in the absence of such explanation, the meaning was properly left to the jury: Rhoads’s Estate, 189 Pa. 460.

As said by the court, “What his understanding about it was, will be for the jury to say under the circumstances, whether he took it in full.” The making of the contract and its partial performance are not in dispute, the defense being limited to its claim of the plaintiff’s inefficiency, and the right to discharge him for that reason. In this, the burden of proof was on the defendant to satisfy the jury that its reason for discharging the plaintiff was good; this fact having been fully submitted, as presented in the third assignment of error, it must be considered as properly determined against the defendant. And so, too, the court properly and fairly submitted to the jury the question of the plaintiff’s efforts to secure employment during the balance of the year, and his duty to procure other service if he could.

The employment was for a determinate period, and if thé plaintiff was improperly dismissed before the term of service had expired — and this fact was so determined by the verdict— the plaintiff was prima facie entitled to recover the stipulated compensation for the whole term if it appears that he honestly endeavored to secure employment during that period and as honestly failed: King v. Steiren, 44 Pa. 99; Wilke v. Harrison Bros. & Co., 166 Pa. 202; McDowell’s Appeal, 123 Pa. 381.

The jury was specially cautioned not to allow interest as such on the plaintiff’s claim, if they found in his favor, but was instructed “you may allow him anything up to six per cent by way of its detention,” which, in the light of the verdict, was not harmful to the defendant. In this there was no error. The assignments of error are overruled and the judgment is affirmed.