Atchison, T. & SFR Co. v. Andrews
| Decision Date | 09 April 1954 |
| Docket Number | No. 4676.,4676. |
| Citation | 211 F.2d 264 |
| Parties | ATCHISON, T. & S. F. R. CO. v. ANDREWS. |
| Court | U.S. Court of Appeals — Tenth Circuit |
L. W. Butterfield, Los Angeles, Cal. (R. S. Outlaw, Chicago, Ill., E. C. Iden and B. G. Johnson, Albuquerque, N. M., on the brief), for appellant.
James B. Cooney, Las Cruces, N. M. (P. H. Dunleavy, Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
Henry E. Andrews sued The Atchison, Topeka and Santa Fe Railway Company to recover damages for the alleged breach by wrongful termination of a contract between the parties in which defendant employed plaintiff to dig or drill certain test holes for the discovery or development of uranium. A copy of the contract was attached to the complaint. It was in the form of a letter written by the defendant to plaintiff and accepted by the latter. It provided that plaintiff should furnish all labor, tools, powder, and equipment to dig or drill the test holes; that payment for such work should be on the basis of actual cost of labor and materials, plus ten per cent, plus rental of equipment, plus payroll taxes; and that defendant should carry insurance on plaintiff's men. By answer, the defendant pleaded that the contract was for the performance of personal services; that it was terminable at will; and that it was not alleged in the complaint that plaintiff was a duly licensed contractor. A verdict was returned for plaintiff in the sum of $2,500; judgment was entered upon the verdict; and defendant appealed. For convenience, continued reference will be made to the parties as plaintiff and defendant, respectively.
Reversal of the judgment is sought on the ground that the contract, being one for the rendition of personal services and providing no period during which it should be in force nor any specific amount of work to be completed, was terminable at will. The contract was one for the rendition of personal services. It did not provide any period of time during which it should be in force and effect. And it made no provision for any specific amount of work to be completed under its terms. It provided that test holes should be dug or drilled. But it did not fix the number of such holes, or contain any specification concerning them. It is the well settled rule that a contract providing solely and exclusively for the rendition of personal services, fixing no period of time during which it shall be in force and effect, and failing to specify that a certain amount of work shall be performed under its terms, is terminable at the will of either party. Warden v. Hinds, 4 Cir., 163 F. 201; Fahrenwald v. Ohio Steel Foundry Co., 6 Cir., 16 F.2d 658; Boatright v. Steinite Radio Corp., 10 Cir., 46 F.2d 385; Livermore v. Mandeville & Thompson, 5 Cir., 93 F.2d 563, certiorari denied, 303 U.S. 653, 58 S.Ct. 752, 82 L. Ed. 1113; Christensen v. Pacific Coast Borax Co., 26 Or. 302, 38 P. 127; Foster v. Atlas Life Insurance Co., 154 Okl. 30, 6 P.2d 805; Carpenter Paper Co. v. Kellogg, 114 Cal.App.2d 640, 251 P.2d 40; Duff v. P. T. Allen Lumber Co., 310 Ky. 439, 220 S.W.2d 981.
Recognizing the general rule just stated, the trial court interpreted the contract as being terminable. But the court was of the further view that it could have been terminated only by the giving of reasonable notice of termination. While the attorney for plaintiff was arguing the case to the jury, the court suggested that he explain to the jury the manner in which the court had interpreted the contract in respect to it being subject to termination. Thereupon, the attorney for the defendant suggested that the court do that in order that counsel and the jury would understand what the issue was to be. Immediately after that suggestion was made, the court instructed the jury that the contract could have been terminated by either party by giving reasonable notice of such termination; that the defendant terminated the contract without giving any notice; that it was wrong in failing to give notice; and that the question of liability was limited to the damages which may have accrued to plaintiff by reason of the failure to give a reasonable notice of the termination of the contract. The attorney for the defendant stated that he assumed the question of the measure of damages would be covered in the general instructions, and the court observed that the assumption was correct. Argument to the jury was then resumed. Following the arguments and in the course of its general instructions, the court again instructed the jury that the contract was one which the defendant could terminate. But the court added that before it could terminate the contract rightfully, the defendant was required to give plaintiff reasonable notice thereof in advance; that it was for the jury to determine whether notice was given; and that if notice was not given or whatever notice was given was not reasonable, then it was for the jury to determine what would have been a reasonable notice. No exception was taken to the special instruction or to that part of the general instructions in respect to the contract being terminable but that reasonable notice must have been given before it could be rightfully terminated. Of course, the defendant was not in position to except to that part of the instructions in respect to the contract being terminable for that was in complete harmony with the contention of the defendant. But no exception was taken to the added part of the instruction to the effect that while the contract was terminable, before the defendant could rightfully terminate it reasonable notice of termination must have been given. The defendant requested the court to instruct the jury in respect to what was a reasonable notice, but it did not except to that part of the instruction to the effect that the contract could not be rightfully terminated without giving a reasonable notice thereof in advance. And it...
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