95 P. 1128 | Cal. Ct. App. | 1908
This is an appeal by defendant from a judgment entered against it upon the verdict of a jury and the order of the court denying its motion for a new trial.
The complaint is in two counts. In the first count plaintiff sought to recover a balance of $10,021.91, upon quantum meruit, for services rendered by plaintiff to defendant, as its general manager, from November 18, 1898, to March 25, 1901. *37
The second count alleges that plaintiff was duly elected general manager of defendant by its board of directors on the eighteenth day of February, 1901, for the term of one year from said day, and performed the duties of said position until the twenty-fifth day of March, 1901, from which last day defendant has refused to permit plaintiff to perform such duties. Upon this count plaintiff sought to recover the sum of $5,385 as the reasonable value of the services that would have been performed but for the prevention by defendant.
The jury rendered a general verdict in favor of plaintiff for the sum of $2,500, for which judgment was accordingly entered for plaintiff.
Appellant objects to certain instructions given to the jury as misleading. Respondent insists that we cannot review the action of the court in this regard, for the reason that it does not appear from the record that the instructions now complained of were not given at the request of the defendant, and we think that this contention must be sustained.
The statement of the case recites that at the conclusion of the testimony, and after argument by the respective counsel for each party, it was stipulated "that all instructions given by the court on its own motion were excepted to by both parties; that all instructions requested by plaintiff and given by the court were excepted to by the defendant; that all instructions requested by defendant and given by the court were excepted to by plaintiff."
The statement sets forth about twenty folios of instructions, but nowhere is it shown which were given at the request of the plaintiff, which were given at the request of defendant, or which were given upon the court's own motion.
As was said in Gray v. Eschen,
We think the court, in excluding certain testimony, erred to the prejudice of defendant. It was the contention of defendant that plaintiff had been employed by defendant during the period he worked for defendant at a stated salary, to wit, at the weekly salary of $27.50 per week, from November *38 18, 1898, to January 1, 1899, and at the weekly salary of $32.50 per week during the balance of the time; which had been fully paid him up to the time of his discharge, which occurred shortly after the death of Mr. Noonan. Plaintiff testified that his compensation had never been agreed upon or fixed, but that each week he had drawn $32.50 to cover his living expenses. He testified that the reasonable value of his services was $500 per month, and he sought to recover for his services at that rate.
"The J. Noonan Furniture Company" was incorporated November 18, 1898. In this connection plaintiff, upon cross-examination, testified: "It was Mr. Noonan's idea and my idea to incorporate the J. Noonan Furniture Company. Prior to the time of the incorporation of the J. Noonan Furniture Company I worked for Mr. Noonan, I think, ten or eleven years. I was an employee there." Thereupon he was asked by defendant's attorney, "What were your duties as an employee there?" Whereupon the attorney for the plaintiff said, "To this line of questions we will object to all of them, and take a ruling of the court and exception."The court sustained the objection, and defendant excepted.
After plaintiff had testified that he had drawn $32.50 each week from the time of the incorporation, he was asked by defendant, "Isn't that the amount you received before incorporation?" Plaintiff objected, and the objection was sustained. Defendant excepted. Plaintiff testified that the assets of the J. Noonan Furniture Company came from J. Noonan. After plaintiff had testified that his duties did not change in character during the period covered by the action, he was asked on cross-examination, "On the 17th day of November, 1898, were not your duties just the same as they were on the 18th day of November, 1898?" To this question the court sustained the objection of plaintiff.
In these rulings the court erred. It is manifest from the record that defendant sought to prove, by the questions ruled out, that plaintiff had, before the incorporation of the business of J. Noonan into the J. Noonan Furniture Company, worked for J. Noonan in the same capacity that he worked for the corporation thereafter, and at the same wages that he drew and was paid after the incorporation of the business. This was proper cross-examination of the plaintiff upon his *39 testimony that his compensation had never been fixed, and that the sums that he drew weekly were not in payment of a fixed salary, but simply for his living expenses.
Where an employee, hired at a fixed salary, continues in the same employment after the expiration of the term of the original hiring, without any new contract as to compensation, it is presumed that the parties intend the same compensation. (Nicholson v. Patchin,
In such a case there can be no recovery on a quantum meruit,
as the terms of the original contract control. (Nicholson v.Patchin,
The questions ruled out were proper for another reason: Plaintiff had testified as an expert that the services performed by him were worth $500 per month. Upon this phase of his direct examination it was proper to show upon cross-examination that he had performed the same services for practically the same concern for a much less compensation than $500 per month.
The court did not err in admitting in evidence the by-law defining the duties of the general manager. Plaintiff had been appointed to the position of general manager, and it was proper to show what the duties of such position were, so that it could be determined from the evidence as to what he did do, whether he had properly and fully performed the duties of his position.
We cannot say that the court erred in overruling the objection to the testimony of plaintiff and Bartlett as to the value of plaintiff's services. Plaintiff showed himself sufficiently qualified to give an opinion as to the value of his services. *41
While the qualifications of Bartlett were so meager that the court might well have ruled out his opinion, and such we think would have been the better practice, yet we cannot say that there was an abuse of discretion in allowing the testimony to go to the jury. The determination of the qualification of a witness offered as an expert must be left largely to the discretion of the trial judge. (Howland v. Oakland C. St. Ry.Co.,
For errors in ruling out testimony above noted the judgment and order must be reversed, and it is so ordered.
Cooper, P. J., and Kerrigan, J., concurred.