Bauer v. Goldman

• Decision Date: 01 March 1909
• Citation: 100 P. 435,45 Colo. 163
• Parties: BAUER v. GOLDMAN.
• Court: Colorado Supreme Court

100 P. 435

45 Colo. 163

BAUER v. GOLDMAN.

Supreme Court of Colorado

March 1, 1909

Appeal from County Court, City and County of Denver; Charles McCall Judge.

Action by Lillian M. Goldman against Louis Bauer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Muller & Summerfield and H. H. Hindry, for appellant.

CAMPBELL J.

Plaintiff Lillian M. Goldman, sued Louis Bauer for an alleged breach of contract for services. The contract is evidenced by a telegram and letters that passed between them; plaintiff then being in Chicago and defendant in Denver. Plaintiff says that, before the employment was consummated, she had a conversation with defendant in Denver, in which the terms of the contract were discussed, but this conversation, as testified to by her, in no wise changes the force and effect of the engagement as they appear in the letters and telegram in evidence, on the strength of which she left Chicago and came to Denver to begin work. Defendant sent plaintiff a telegram offering her a position as a saleswoman in his millinery store in Denver, and stated: 'Salary same as offered Miss Fieldman.' To this letter plaintiff answered: 'Now in regard to salary, you say same as was offered Miss Fieldman. We do not know what salary was offered her. * * * So please let us know whether you or we stand transportation charges.' In reply to this letter of plaintiff the defendant wrote her a letter, in which, after stating that he supposed she knew what salary had been offered Miss Fieldman, he said: 'I offered Miss Fieldman $15 per week straight salary the year around, that is what I meant when I telegraphed same as Miss Fieldman, and will after you are acquainted with stock and trade give you a commission which will run your salary to quite a good figure. As to R. R. fare that is of secondary consideration. * * * If you will stay and can hold position for the one season, at the end of which I will return you your R. R. fare.' The foregoing is all the evidence as to the contract. At the trial defendant justified his discharge of plaintiff at the end of a given week upon the ground that she was disobedient to his directions, and indifferent in her work. The court declined at defendant's request to determine from the foregoing evidence, as to which there was no controversy, the duration of the contract, but, on the contrary, instructed the jury to determine the same from the written and oral evidence. In this the court was manifestly wrong. The entire contract is shown by the writings, and the oral evidence, as we have said, in no wise changes, contradicts, or qualifies it, but is merely a repetition, in substantially the same words, of the language of the letter. Hence it was for the court, not the jury, to say what the contract was. Plaintiff contends on this evidence that she was hired by defendant for a period of one year from the time she began work in April 1905, at a salary of $15 per week payable weekly, with the further agreement that, if she stayed in the service for one season and held her position, the amount of her railroad fare would be re paid; while defendant contends that the employment was a weekly employment, which might be terminated by either party at the end of any week.

It is entirely clear that the contract was not for a year at a compensation of so much per week, but that at most it was by the week. A case in some of its features quite in point is Kansas Pacific Railway Company v. Roberson, 3 Colo. 142. The plaintiff there was appointed agent of the railway company on the Pacific Coast, and before the contract was made a telegram was sent to plaintiff asking what salary he would require, to which he answered: 'Three thousand dollars per annum.' The general superintendent of the company wired as follows: 'Will engage you to commence October 1st.' Upon these facts the plaintiff claimed a hiring for a year. The court by Hallett, C.J., held that, in the absence of custom or usage to the contrary, such a general hiring as the evidence disclosed cannot be regarded as a contract for a year's service. In the course of the opinion, he said that this telegram must be taken as fixing the rate of compensation, and not prescribing...