Arkadelphia Lumber Co. v. Asman

• Decision Date: 17 November 1900
• Citation: 60 S.W. 238,68 Ark. 526
• Parties: ARKADELPHIA LUMBER COMPANY v. ASMAN
• Court: Arkansas Supreme Court

60 S.W. 238

68 Ark. 526

ARKADELPHIA LUMBER COMPANY v. ASMAN

Supreme Court of Arkansas

November 17, 1900

Appeal from Clark Circuit Court, JOEL D. CONWAY, Judge.

Judgment reversed and cause remanded.

J. H Crawford, for appellant.

The evidence fails to support the verdict, because it fails to show any mutuality of understanding. 17 Ark. 78; 1 Ark. 415. An indefinite hiring is a hiring at will. 56 P. 652; 11 A 176, S. C. 76 Md. 554; 42 N.E. 416, S. C. 148 N.Y. 117; Wood Mast. and Serv. § 136; 36 A. 714, S. C. 19 R. I. 697; 35 Ark. 156; 22 P. 1126, S. C. 81 Cal. 596; 48 N.E. 597, S.C. 18 Ind.App. 474.

Dougald McMillan, for appellee.

The evidence sustained the verdict. Appellant's failure to introduce its president, who knew all about the actual contract, was to be construed against it. 48 Ark. 497; 33 Ark. 91; 56 Ark. 384. The general course of dealing between parties is competent in proof of their contract. Beach, Cont. §§ 14, 34. The court will not disturb the finding of the jury on disputed questions of fact. 19 Ark. 674; 20 N.W. 878; 49 Ark. 122.

OPINION

BUNN, C. J.

This is a suit for balance of salary claimed to be due, amounting to the sum of $ 400 and interest. Judgment for plaintiff, and defendant appealed.

The evidence shows that one F. R. Pierce was vice-president of the Arkadelphia Lumber Company up to the first Monday in February, 1897, when he was succeeded by the plaintiff, H. R. Asman. While vice-president, Pierce was agent to sell the product of the mill. He received for his services $ 2400 per annum. It seems that Asman took the place of Pierce, nothing being said further as to pay or how long the employment should continue. Asman worked for the company one year, and was paid for his services at the rate of $ 2400 per annum, or $ 200 per month. He continued in his second year without any thing being said further, and, we infer, continued to be paid monthly at the same rate until in September, 1898, his resignation was demanded on the ground that his services were no longer needed. He did not directly respond to this demand, but sent a blank to the president and principal officer of the company, who had given him the appointment in the first instance, for him, the president, to fill out and return to him, which was done; but Asman declined to sign the form of resignation himself. This correspondence resulted in Asman's absolute refusal to resign explaining in the meantime his attitude in the matter, so as to relieve himself of the charge of having conceded the right of the defendant company to discharge him. He seems to have been paid up to December, and sued for two months' salary.

The general rule on this subject is that when one is employed to be paid so much per month, the employment is merely at will, or as long as the employee shall work, the stated amount being merely indicative of the rate at which the employee is to be paid for the time he may work. Wright v. Morris, 15 Ark. 444; Haney v. Caldwell, 35 Ark. 156; Martin v. N. Y. Life Ins. Co., 148 N.Y. 117, 42 N.E. 416.

But it is argued, in effect, that the extraneous circumstances in evidence take this case of the general rule, and one of these circumstances is that the employment as agent to sell the product of the mill was, in some way, so intimately connected with the office of vice-president that the time for which this employment ran was the same as the tenure of office of vice-president, which is conceded to be one year. Indeed this, as a question, was submitted to the jury by the court in the sixth instruction, which reads as follows, viz.: "If you believe that there was no compensation attached to the office of vice-president, he can recover nothing on that score. But if you believe the election of vice-president placed him in a position to manage and conduct the business,...