Bradford v. Pearson

• Decision Date: 31 July 1848
• Citation: 12 Mo. 71
• Parties: BRADFORD v. PEARSON.
• Court: Missouri Supreme Court

12 Mo. 71

BRADFORD

v.PEARSON.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO SALINE CIRCUIT COURT.

HAYDEN, for Plaintiff.

1st. The court erred in giving to the jury the said instructions prayed for by plaintiff. 2nd. The Circuit Court erred in refusing to give to the jury said several instructions of defendant which were rejected by the court. 3rd. The court ought to have granted the defendant a new trial of the cause for the reasons set forth in his said motion therefor.

STRINGFELLOW, for Defendant. The only question presented by the record is the sufficiency of the evidence to sustain the plaintiff's declaration. The question was fairly presented to the jury by the instructions and was found by them. The instructions refused, assumed that plaintiff did not complain of his discharge, and that having uttered no complaint, he is to be considered as consenting to his discharge. If there be error in the instruction which authorized the finding interest for plaintiff, it is cured by the remuittitur of plaintiff. It was not necessary for plaintiff to offer to perform the contract after his discharge.

MCBRIDE, J.

This was an action of assumpsit brought by Pearson against Bradford in the Saline Circuit Court. The declaration contained a common count for work and labor, and a special count alleging that the defendant employed the plaintiff as a pill-peddler and collector for one year at the sum of $300, and that the plaintiff entered the service of the defendant and continued therein for the space of six months, at the expiration of which time, and without any sufficient cause therefor, the defendant discharged him from his employment, & c. The defendant pleaded the general issue under the statute of the last General Assembly. A trial was had and a verdict found for the plaintiff; whereupon the defendant moved for a new trial, which the court refused, and he excepted, and has brought the case here by writ of error.

On the trial in the court below, evidence was given tending to prove that in the spring of 1846 the defendant hired the plaintiff to vend pills and collect money for him in the State of Illinois; that the plaintiff prior to his setting out for Illinois, served the defendant twenty days, at fifty cents a day, in manufacturing pills; that on the 1st of August, 1846, the plaintiff proceeded to the State of Illinois for the purpose of peddling pills and collecting money due the defendant in that State, and continued in said service until the 1st of October next following, when he returned to defendant's house; that in consideration of his services to be performed, the defendant was to pay him $300 per annum, to be paid at the expiration of the year; that a day or two after the plaintiff returned from Illinois, the defendant informed the plaintiff's father that he had discharged the plaintiff from his service, because the plaintiff had, whilst in his service, expended more of his money than his wages amounted to. The witness, on cross-examination, stated that the plaintiff did not complain to him of the conduct of the defendant in discharging him, nor that the discharge was against his consent, or that he objected thereto.

The defendant then offered evidence of the contents of a letter from the plaintiff, whilst in Illinois, to the witness, in which he complained of the service which he had to perform, and that he would not undertake such another trip for any consideration: also evidence that whilst plaintiff was in his service, in Illinois, he expended more of defendant's money than another agent engaged in the same service, and that plaintiff was not in his employ after his return home on the 1st of October, 1846.

The plaintiff thereupon asked, and the court gave to...