199 P. 844 | Cal. Ct. App. | 1921
The plaintiff brought this action to recover the aggregate sum of $1,846, alleged to be due him from defendant according to the terms of a certain contract into which, it is alleged, he and the defendant entered on the twenty-fifth day of July, 1918.
The court below sustained a demurrer interposed by defendant to the complaint upon both general and special grounds. The plaintiff refused to amend his complaint, although allowed by the court ten days within which to do so, if so advised, and thereupon judgment by default was entered against plaintiff.
The appeal is from said judgment. *760
The complaint alleges: "That heretofore, to wit: on the 16th day of July, 1918, defendant submitted to plaintiff a proposition of contract in words and figures as follows, to wit: 'Proposition to L. A. Palmer. Finish house inspected July 15, 1918, and give house rent and water. Furnish office and instruments and tools. Salary $100 a month. Duties, to attend to all of engineering work now constructed and attend to prospective litigation, etc. Free to attend to consulting work at any time. On any new projects that may be worked up together Harlow to finance and Palmer to receive 25 per cent. of net profits for doing engineering. Agreement to run one year after beginning active work. Renewable at option of both. A. L. Harlow, 7/16/18'; that thereafter, to wit, on the twenty-fifth day of July, 1918, plaintiff accepted the above and foregoing proposition of contract and agreed to its terms by so informing defendants, in person, and plaintiff did then and there offer and ask to enter upon the services of defendant and plaintiff was then and there and ever since has been and now is ready and willing to perform all of the terms and conditions of said contract on his part to be kept and performed; that defendant has failed and neglected to perform the terms and conditions or any of them of said contract upon his part to be kept and performed, and has failed, neglected and refused to pay or cause to be paid to plaintiff the salary set forth in said contract at the rate of one hundred dollars ($100.00) per month, or house rent, or water rentals ever since the 13th day of September, 1918, on which said date defendant paid plaintiff the sum of one hundred dollars . . . as payment of plaintiff's salary for the month ending August 25th, 1918, and defendant still fails and refuses to pay said salary or house rent or water rentals although repeatedly requested by plaintiff so to do; that by reason of the failure, neglect and refusal of defendant to perform the terms and conditions of said contract upon his part to be kept and performed, and because of his refusal so to keep and perform his said terms of contract, plaintiff has been forced to rent other and different premises in which to live than those so promised by defendant, and has been forced to pay water rentals for domestic uses in said rented premises to a total cost of four hundred forty-six dollars . . .; that no part of said *761 salary due and payable by defendant from and after the 25th day of August, 1918, to and including the 25th day of October, 1919, and no part of the aforesaid house rent or rentals for water for domestic use in such rented premises from and after the 25th day of July, 1918, to and including the 25th day of October, 1919, has been paid to plaintiff; that no part of said salary, house rent, or water rentals has been paid to plaintiff during any of said months and there still remains due and unpaid under said contract to plaintiff the sum of one thousand eight hundred forty-six dollars."
The special grounds of demurrer are: "That said complaint is uncertain in that it does not appear therein, nor can it be ascertained therefrom, whether or not plaintiff was engaged in any employment during the period from the twenty-fifth day of July, 1918, to and including the twenty-fifth day of October, 1919; nor does it appear therein, nor can it be ascertained therefrom, whether or not plaintiff made any effort to obtain employment; that paragraph four of said complaint is uncertain in that it does not appear therein, nor can it be ascertained therefrom, where or in what place plaintiff was forced to rent other and different premises in which to live, as alleged in said paragraph; that said complaint is ambiguous and unintelligible for the same reasons that it is herein alleged to be uncertain."
The pleaded contract, as one for the employment of the personal services of a person, is not, as to the nature of such services, as explicit as it could have been made; nor does the complaint otherwise furnish any explanation of the exact nature of the services to be performed. It is, however, made clear enough to appear by the complaint that the defendant employed the plaintiff to perform for him certain personal services as an engineer for the period of one year, beginning from the date of the acceptance by plaintiff of said contract of employment (July 25, 1918), and that in return for the services so performed the defendant was to pay the plaintiff the sum of one hundred dollars per month, with house rent and rates for water to be used for domestic purposes free or as a part of the compensation so to be paid plaintiff.
[1] In cases of the character of the one here, where the master has wrongfully discharged the servant before the *762
expiration of the period of time during which the contract, by its terms, is to run, the complaint, in an action, ex delicto,
for damages for its breach must show by a direct averment of some character that there was a wrongful discharge of plaintiff by defendant. In such an action, the statement in the complaint that the defendant has refused to permit the plaintiff to proceed with the performance of the services called for by the contract and has refused to pay plaintiff for such services, while undoubtedly sufficient to entitle the plaintiff to recover so much of his monthly compensation as may then be due under the contract, would not be sufficient to show that he had been discharged. (Stone v. Bancroft,
As to the special grounds of demurrer set up against the sufficiency of the statement of the facts pleaded in the complaint, it will require but little reflection to convince even the hypercritical that the objections so made are, so far as the matter of pleading is concerned, devoid of substantial or, indeed, any real merit.
[4] It is obviously true that the earning and receipt of compensation by a servant for services performed for other persons than the defendant after his (the servant's) discharge or after he has been prevented by defendant from performing the services constitutes an element in the measure of damages in such a case. (Seymour v. Oelrichs,
The third and fourth special grounds of demurrer are obviously without force. The complaint states that plaintiff was required to secure a house other than the one with which defendant agreed to furnish him in which to live during the term of the contract, and it is, so far as the matter of pleading is concerned, wholly immaterial where the house so rented by him was situated. Indeed, such an averment would involve, if anything, the statement of an evidentiary fact.
We conclude that the demurrer should have been overruled. *765
The judgment is reversed, with direction to the trial court to allow defendant to answer the complaint, should he be so advised.
Burnett, J., and Finch, P. J., concurred.