124 Mich. 344 | Mich. | 1900
Plaintiff brought suit to recover salary for the months of August, September, October, November, and December, 1897, claimed to be due under a.written contract of employment by the defendant for the year 1897. By the terms of the contract, plaintiff was employed to superintend the manufacture of brake beams; his compensation being $5,000, payable in monthly installments of $416.66. Among other things, he agreed “to cause the work to be doné efficiently, promptly, and to the satisfaction of the Brake-Beam Company, and at the least possible cost to it;” and, further, “to provide the necessary material on the best terms possible for the Brake-Beam Company.” His services as superintendent were not satisfactory to the defendant, and he was discharged September 4, 1897. He had been paid to August 1st. The declaration contains a special count, to which is appended the common counts. A bill of particulars was demanded and furnished, in which plaintiff states his claim as follows:
1897.
Sept. 1. Salary for month of Aug., 1897..... 8416 66
Oot. 1. “ “ “ “ Sept., 1897.......... 416 66
Nov. 1. “ “ “ Oet., 1897.......... 416 66
Deo. 1. “ “ “ “ Nov., 1897_____ 416 66
1898.
Jan. 1. Salary for month of Dec., 1897__________ 416 66
Interest at six per cent, per annum.
All under written agreement for employment made between plaintiff and defendant, dated January 1, 1897.
Upon the trial, plaintiff testified that he had performed the general services laid out to be performed under the contract up to the time of his discharge, and that he
The only error assigned is as follows:
“The court erred in charging the jury as follows: ‘I do not think the plaintiff is entitled to recover anything for his services under the agreement, either during the month of August or the first four days in September, 1897, because, as I have stated, the discharge of the plaintiff from the employment was justifiable.’”
It is claimed by counsel that plaintiff performed the contract to the date of his discharge, and as there was no notice, under the plea of the general issue, of recoupment or set-off, defendant was not entitled to any reduction from the contract price for the month of August and the
We think the court below was in error in directing the verdict for defendant. It was conceded that he worked one month and four days for which he was not paid. His retention in service for that time was some evidence of his right to wages. Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187). And the fact that he had violated his contract could not be taken by the court as proof positive that such wages so earned had been offset by this breach of contract. It is true that the breach .of the contract estopped him from recovering wages after his discharge, for it gave the master the right to discharge him. But it was a question for the jury to determine the value of the services actually rendered, and the contract, with proof that services were actually rendered, was some evidence of his right to wages. Had the defendant given notice of recoupment, it could undoubtedly have set off its damage by reason of the breach against the value of the services.
The judgment must be reversed, and a new trial ordered.