177 Ky. 757 | Ky. Ct. App. | 1917
— Affirming.
Mrs. A. L. Hutchison brought this suit against the Stewart Dry Goods Company to recover damages for a breach of contract of employment. Prom a verdict and judgment in her favor, the defendant company appeals.
According to plaintiff’s evidence, she was employed by the defendant in January, 1912, as manager of its lace and trimmings department, for a term of .one year at an agreed salary of $1,500.00 a year, with the further understanding, however, that her salary was to be increased from time to time if such increase was deserved. Pursuant to this agreement, her salary was first increased to $1,800.00 per year, and in 1914 to $2,400.00 per year. She continued in defendant’s service from January, 1912, to August, 1915, when she claimed she was wrongfully discharged. She further testified that after her discharge she made diligent efforts to find other employment for the balance of the year, but was unable to do so because she was discharged in August and contracts for such employment were usually made in January or July. Failing to find other employment, she entered business for herself in December, 1915, but this venture resulted in a loss.
According to the evidence for defendant, plaintiff was not employed for any definite period of time, and she was discharged because she failed to observe the same business hours usually observed by its other employes.
1. While we have not had occasion to pass on the precise question, it is the well settled rule in other jurisdictions that where one enters the service of another for a definite period and continues in the employment after the expiration of that period without a new contract, it is presumed that the old contract continues; and this presumption must prevail, unless overcome by a new agreement or facts sufficient to show that a different hiring was intended by the parties. Hence, where an employe originally hired for a year, is allowed to go on working after the end of the term, he is deemed to be serving under a new contract for another year, which results by operation of law from a continuance of the employment. Labat on Master and Servant, section 141; 26 Cyc. 976; Glendale Fruit Co. v. Hirst, 6th Arizona 428; Ewing v. Jackson, 57th Ark. 237; Herman v. Littlefield, 309 Cal. 430; State Bd. of Ag. v. Meyers, 20 Col. App. 139; Standard Oil Co. v. Gilbert, 84 Ga. 714; Crane Bros. Mfg. Co.
In this connection it is also suggested that the acceptance of a proposition for employment at a specified rate per year is not an employment for a year, but one merely at will. Cuppy v. Stolwerk, etc., 143 N. Y. 967; Doolittle v. Pacific Coast Safe and Vault Company, 154 Pac. 753. While this proposition may be true, plaintiff does not claim that she was merely employed at so much per year, but states emphatically that she was originally employed for a period of one year. It follows that the above rule has no application to the facts of this ease.
2 The point is also made that the trial court erred in failing to instruct the jury to diminish plaintiff’s damages by the reasonable value of her services in the busL ness in which she engaged in the month of December^ 1915. It is the rule, that where an employe under corn-tract to perform services for a stipulated time is wrong-* fully discharged by his employer before the expiration of the term of his services, the measure of damages is the contract price less what the discharged employe has earned or might by reasonable diligence have earned. John C. Lewis Co. v. Scott, 95 Ky. 484, 44 Am. St. Rep. 251. Though a discharged employe is only required to seek other like employment, his damages will be reduced by amounts earned at any employment during the unexpired term. Elliott on Contracts, section 2156; Tenzer v Gilmore, 114 Mo. App. 210, 89 S. W. 341; Toplitz v. Ullman, 20 N. Y. S. 50, 46 N. Y. St. 294; Aff’d 2 Misc.
3. Lastly, it is insisted that the trial court erred in refusing to give the following instruction offered by the defendant:
“If the jury believe from the evidence that the plaintiff, after notice that she was not performing her duties in accordance with her contract, failed or refused to so*761 perform them, then the law is for the defendant and the jury should so find.”
This instruction was properly refused because no witness claiming to know the terms of the original contract of employment, testified to any violation thereof by plaintiff.
Judgment affirmed.