75 Ill. App. 182 | Ill. App. Ct. | 1898
delivered the opinion of the Court.
Appellee sued appellant to recover damages for a breach, by the discharge of appellee from appellant’s service and 'employment on August 7, 1888, without any just or reasonable cause, of the following agreement:
“ Agreement made this 16th day of January, 1888, between Edward Morris and Hath an C. Taliaferro.
The said Edward Morris agrees to employ the said Hathan C. Taliaferro for one year from January 25, 1888, at the rate of $1,800 per year.
The said Nathan 0. Taliaferro agrees to devote all the time necessary to the prosecution of the business and his best efforts in promoting the interests and welfare of said Edward Morris in any capacity to which he may be assigned. This agreement terminates January 24, 1889.
Edward Morris.”
On a trial before the Circuit Court and a jury, appellee recovered a verdict and judgment for $805.61, from which this appeal is taken.
It is claimed, first, the contract is void for want of mutuality; second, the court erred in allowing interest; third, that there is a variance between the declaration and the evidence; and fourth, that the verdict is contrary to the law and evidence.
The contract was in duplicate, one signed by appellant, which was retained by appellee, and one signed by appellee, which was given to appellant.
Appellee commenced work according to the contract, and continued until August 7, 1888, when he was discharged by appellant, and thereafter was refused the right to work, and appellant refused to pay appellee on demand, made at the expiration of the contract, for the time, after his discharge. After his discharge appellee got other work and earned some money, which, deducted from the amount which would have been due him according to the contract, had he been allowed to finish it, left a balance due appellee under the contract January 24, 1889, on account of his salary, of $542.50. The excess of the verdict over this amount of $263.11, is for interest.
The undertaking of Morris to employ appellee for one year from January 25, 1888, and that such employment should terminate January 24,1889, when accepted and acted upon by appellee, as it was by working until he was discharged, made the contract mutual, and binding on appellee. Mahon v. Daly, 70 Ill. 653; Dana v. Short, 81 Ill. 468; Short v. Kieffer, 142 Ill. 258.
We think these cases are decisive of this point, and that the case of Orr v. Ward, 73 Ill. 318, cited by appellant, does not necessarily conflict with them. In that case the court says the breach of the contract alleged was not proven, and that was sufficient to bar a recovery. What the court said as to the contract not binding the parties, was not necessary to a decision of the case. In any event the later decision in the Dana case, supra, controls, and we deem it unnecessary to consider the cases cited from other States.
If there was a breach of the contract and money due by reason thereof to appellee, then he was entitled to interest, and it was properly allowed. Murray v. Doud & Co., 167 Ill. 368, and cases cited.
Moreover there was evidence which justified the jury in finding there was an unreasonable and vexatious delay of payment, which would justify the allowance of interest under the statute. County of Franklin v. Layman, 145 Ill. 138.
That there was a variance between the declaration and proof, we think can not be maintained. The gist of the action and the allegation of the declaration is, that appellee was wrongfully discharged, that there was a breach of the contract because of such discharge, and he claimed damages, and not wages as such, for the breach of the contract. The allegation of the declaration that there is due appellee under the contract $542.50, may be rejected as surplusage. The balance due him for wages, after deducting what he might, with reasonable diligence, have earned, together with interest, make up appellee’s damages. The contract was proven; also the wrongful discharge; what appellee had been paid, and his readiness and ability to work; and what he earned after his discharge. That made a prima facie case under the declaration, and entitled appellee to a recovery. School Directors v. Crews, 23 Ill. App: 367; Fuller v. Little, 61 Ill. 21.
Also the alleged variance does not appear to have been called to the attention of the trial court at any time, and can not be insisted on in this court for the first time. McCormick H. M. Co. v. Sendzikowski, 72 Ill. App. 402, and cases cited.
Under the fourth point, that the verdict is contrary to the law and the evidence, it is urged that the proof shows by a preponderance that appellee was discharged for good cause; that he was incompetent, careless, negligent and indifferent in the management of appellant’s business.
As to this, it appears there was a conflict in the evidence, and from a careful examination of the proofs, we can not say that appellant’s contention is supported by them. In this regard the burden of proof was on appellant, and he has failed to establish, by a preponderance of the evidence, that there was legal cause for appellee’s discharge. At least it does not appear that the verdict is manifestly against the weight of the evidence on this point.
Appellant’s contention that the court erred in sustaining objections to certain questions asked appellee on cross-examination, as to what statements or representations he made to appellee at the time he was employed, as to his ability and capacity to run a meat market, and as to what wages he received prior to his employment by appellant, is not tenable for two reasons: First, because it was not cross-examination; and second, no offer was made by counsel as to what he expected to prove by the witness in these respects; and neither the trial court nor this court can tell whether the answers of the witness would have been at all material or not. Howard v. Tedford, 70 Ill. App. 660; Berkowsky v. Cahill, 72 Ill. App. 101.
Appellee concedes that the verdict was wrong, as to the amount of interest allowed, by $14.33, and offers to remit it, whereas appellant claims that in any event it was too large by $38. Neither is right. Appellee was entitled to interest at six per cent from January 24, 1889, to July 1, 1891, and from that date at five per cent to the time of trial (Firemen’s, etc., Co. v. Western Refrigerating Co., 162 Ill. 322), which would be $233.11, thus making the interest allowed too much by $30.
If this amount is remitted within ten days, the judgment will be affirmed for $775.61, each party to pay his own costs in this court; otherwise the judgment will be reversed and the cause remanded.
