Alabama Credit Corp. v. Higgins
| Citation | 36 So.2d 227,251 Ala. 17 |
| Decision Date | 24 June 1948 |
| Docket Number | 7 Div. 925. |
| Parties | ALABAMA CREDIT CORPORATION v. HIGGINS. |
| Court | Supreme Court of Alabama |
Rains & Rains, of Gadsden, for appellant.
Roberts Cunningham & Hawkins, of Gadsden, for appellee.
This suit is for a breach of contract whereby the defendant is alleged to have employed the plaintiff for a period of twelve months, or one year, as an optometrist, at a salary of $125 per week, payable twice monthly (on the first and fifteenth day of each month). As amended, the complaint consists of one count, to which demurrer was overruled. A trial by jury resulted in a verdict and judgment for plaintiff, from which this appeal is prosecuted.
The complaint was substantially in Code form. It alleged the making of the contract, the breach by defendant, and plaintiff's readiness, willingness and ability to perform. It was not subject to any ground of demurrer interposed thereto.
It is undisputed that defendant employed plaintiff as an optometrist to work in its Gadsden, Alabama, jewelry store at a salary of $125 per week, payable twice monthly, on the first and fifteenth day of each month. Each pay check to be calculated on a fifty-two weeks basis: that plaintiff worked for the defendant from about the middle of February, 1946, to the first of October, 1946, and received full pay for the services rendered. The contract between the parties was first oral, but before plaintiff entered upon his duties written memorandums as to the terms of the agreement were made, each party signing a memorandum and giving it to the other, and both parties signing a third memorandum. All the memorandums bear the date of February 6, 1946. The memorandums are not identical, but substantially they are the same, except the memorandum signed by both parties contains the following 'Contract shall not be for less than twelve months.' This stipulation is not in the other memorandums. The plaintiff testified that the memorandum signed by the defendant and delivered to him (plaintiff) together with the memorandum signed by both parties constituted the agreement between the parties. This is not disputed, and one Lewis, the defendant's agent who made the contract, admitted that he signed both memorandums for and on behalf of defendant. The evidence was in conflict as to whether the memorandum signed by both parties was dated when signed.
Appellant defendant in the court below, strenuously insists in brief that the contract was not for a year's duration. But, as we view the record, there is no evidence to support such a contention: on the contrary, the memorandum signed by Lewis, the authorized agent of appellant, specifically provides that the employment shall not be for less than twelve months.
The evidence is conflicting as to the reasons for plaintiff's discharge. On the one hand, defendant's evidence tended to show that plaintiff neglected his duties to defendant, and devoted his time to other pursuits. Plaintiff's evidence tended to prove the contrary. A jury question was presented, and we will not disturb the finding of the jury against the contention of defendant. Clear enough, the defendant was not entitled to the general charge.
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Birmingham-Jefferson County Transit Authority v. Arvan
...of damages recoverable for the breach of a contract, but it did not discuss mitigation of damages. See Alabama Credit Corp. v. Higgins, 251 Ala. 17, 19, 36 So.2d 227, 229 (1948) ("[i]t is permissible for the defendant to show, in order to reduce this prima facie amount of recovery (the stip......
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Southeast Alabama Broadcasting Co., Inc. v. Farrell
...agree with that position. The agreed-to instruction recognized Farrell's legal duty to mitigate his damages. Alabama Credit Corporation v. Higgins, 251 Ala. 17, 36 So.2d 227 (1948). The charge was given in recognition of that duty by both parties and in context it is, therefore, more reason......
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Dean v. Mayes, 6 Div. 796
...requested charge 1.' This rule was also applied in Somerall v. Citizens' Bank, 211 Ala. 630, 101 So. 429, and Alabama Credit Corp. v. Higgins, 251 Ala. 17, 36 So.2d 227. We construe appellant's pleadings to claim damages because her hip was fractured from a 'fall.' A reading of the testimon......
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Keller v. Marvins Credit, Inc.
...appellant's discharge no installment of wages became due. Affirmed. 1. Code 1951 § 11-755. 2. For example, see Alabama Credit Corp. v. Higgins, 251 Ala. 17, 36 So 2d 227; Moore v. Illinois Central R. Co., 5 Cir., 136 F.2d 412, certiorari denied 320 U.S. 771, 64 S.Ct. 84, 88 L.Ed. 461, apply......