Ross v. Fair, No. 26136.

No. 26136. | Miss. | Jan 17, 1927

^* Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., p. 765, n. 88; Master and Servant, 39 C.J., p. 71, n. 55; p. 105, n. 99. Appellant sued appellees for two hundred dollars, salary claimed to be due him by appellees for one month's services by him as foreman of their sawmill, and fifty dollars for the use of a house in which to live while acting as such foreman, which he claimed that appellees had agreed to furnish him, and had failed to do. At the conclusion of the evidence the court directed a verdict and judgment for appellees. From that judgment appellant prosecutes this appeal.

Appellees were operating a sawmill in Winston county. Appellant represented himself to be a sawmill foreman. Appellees employed appellant as their sawmill foreman, beginning September 1, 1925. Appellant worked for appellees in that capacity through the month of September, and, on the morning of October 1st following, after he had entered upon his labors as such foreman, he was discharged by appellees, on the ground that his services were unsatisfactory. Appellant claimed that he was employed by appellees by the month at a salary of one hundred fifty dollars a month, payable monthly, and after serving appellees one month under the contract, and after beginning such services for the following month, he was discharged; that in addition, appellees were to furnish him, while serving them, a house to live in, which they failed to do; that in so discharging him, and failing to furnish him a house to live in while serving them, they breached their contract, which entitled appellant to recover his salary while out of employment, and the reasonable value of the use of a house; that under the contract of employment appellees had the right to discharge him at the end of any month if his services were unsatisfactory. Appellees, on the other hand, claimed that appellant was not employed by the month, but only so long as his services were satisfactory, although D.L. Fair, one of the appellees, admitted in his testimony that appellant was to be paid for his services by the month.

As stated, the court directed a verdict for appellees. In determining the propriety of the action of the court in that respect, every material fact and circumstance proven, or which the evidence tended to prove, going to establish appellant's case, should be taken as true. So viewing the evidence, was the issue of fact one for the court or the jury? We think it was a question for the jury. The evidence showed without conflict that appellant served appellees one month, and began another month before he was discharged; that he served them through the month of September, and was not discharged until between 6 and 8:30 o'clock on the morning of the 1st of October following, and after he had begun his day's work. Appellant testified that he was employed by the month as long as his services were satisfactory to appellees; and that appellees had agreed to furnish him a home to live in while he was in their service, and failed to do so. On the other hand, the testimony on behalf of appellees tended to show that appellant was employed, not by the month, but only so long as his services were satisfactory to appellees; that they had a right to discharge him at any time; and therefore when they did discharge him they were only liable to him for his earned salary up to that time. Under the law, if appellant was employed and paid by the month, as he testified he was, and was discharged by appellees after he entered upon their service for another month, then appellees breached their contract with appellant, and are liable to him for the damages he suffered; and if they breached their contract to furnish him a house to live in while he was in their service, they would be liable to him for whatever damages he suffered on that account. We think the evidence made a square issue of fact whether appellant's contention was well founded or that of appellees. It was therefore a question for the jury.

Reversed and remanded.