53 S.E. 233 | N.C. | 1906
The plaintiff sued before a justice of the peace to recover the sum of $150, the balance due for services. In his complaint he alleged that the defendant owed him $150 for two months' work at $75 per month. The defendant simply denied that it owed the plaintiff anything. The plaintiff testified that on 5 February, 1905, the defendant employed him to buy lumber trees for it, for which service he was to receive $75 per month, (376) payable at the end of each month, and it was agreed that the employment should last four months. At the end of the first month, that is, about 5 March, the defendant paid the plaintiff for that month $75 and without lawful excuse discharged him. For the sole purpose of showing that the justice had jurisdiction of this case, the plaintiff was permitted, over the defendant's objection, to show that after 10 June, 1904, when all the installments of his salary were overdue, he sued the defendant before a justice of the peace for that part of the salary, $75, due for the month ending 5 April, 1905, and recovered judgment for the same, which was paid by the defendant, leaving a balance of $150 due. The defendant admitted that it employed the plaintiff at $75, but introduced evidence to show that he was employed for one month only. In this connection, Mr. Smith, a witness for the defendant, testified that the plaintiff was not hired for four months, but for only one month, and that he was paid for that month, and contended for nothing further than the salary paid to him at the end of the first *279 month. The issues submitted to the jury with their answers were as follows: 1. Did the defendant hire the plaintiff for the term of four months at $75 per month? Yes. 2. Did the defendant unlawfully discharge the plaintiff from its employment after the first month? Yes. 3. Is the defendant indebted to the plaintiff, and if so, to what amount? Yes; $100, with interest from 5 June, 1904, until paid.
The defendant's counsel requested the court to give the following instruction to the jury: "When the plaintiff sued for and collected his one month's wages under his judgment, he was by that estopped to sue for the balance because his contract was entire and not divisible, and suing for less than the amount of the whole claim was in law a decision of what was due him in full." The court refused to give the instruction, and the defendant excepted.
Upon the second issue, the court charged the jury (377) that "If the first issue was answered `yes,' the second issue should be answered `yes,' for upon that issue the burden was upon the defendant, and it had offered no evidence to justify the discharge, if the contract was for four months." Judgment on the verdict was rendered for the plaintiff, and the defendant appealed.
The defendant relied upon the judgment recovered before the justice of the peace for the second month's installment of salary as a bar to this action, and assigns as a reason why it should have this effect that there was a single contract to pay a salary by monthly installments, and as all the installments were overdue at the time the suit was brought and the judgment rendered, the plaintiff was required to sue for all of them in one action and could not make any one installment the subject of a separate suit and obtain judgment for it, without losing the right to recover for the others. The interesting question thus raised in the argument is fully discussed in Jarrett v. Self,
The error in the charge entitles the defendant to another trial.
New trial.
Cited: Smith v. Newberry, post, 389; Dobbins v. Dobbins,