Buchanan & Son v. Ewell

• Decision Date: 29 September 1927
• Court: Virginia Supreme Court
• Parties: D. BUCHANAN AND SON v. HARRY EWELL.

Page 762

148 Va. 762

D. BUCHANAN AND SON v. HARRY EWELL.

Supreme Court of Virginia, Richmond.

September 29, 1927.

Absent, Christian, J.

1. MASTER AND SERVANT — Action by Servant for Wrongful Discharge — Contention of Master that Servant Left of His own Accord — Question for Jury — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. The master asserted that plaintiff was not discharged but quit of his own accord. It appeared in the evidence that after a disagreement the master ordered the servant to take his hat and get out of the store. The servant took his hat and walked out. The master insisted that he did not mean to permanently discharge the servant. On the day of that alleged discharge and on the next day the master and servant met twice and the master said nothing about the servant's coming back to work. Several days later the master directed one of his employees to get the keys to the store door from the servant. There was some evidence tending to show that the master had become dissatisfied with the amount of the servant's sales.

Held: That the question of whether the servant was discharged or voluntarily quit work was one for the determination of the jury, and that its finding in favor of the servant could not be disturbed.

2. MASTER AND SERVANT — Discharge of Servant — Impertinence of Servant — Neglect of Duties by Servant — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. The master contended that the dismissal was justifiable on account of impertinent conduct towards his master and neglect of his duties by the servant. The master, as to the only instance of impertinent conduct relied on by him, was contradicted by the servant and another witness who was present. Aside from the servant's denial or explanation of alleged neglect of duties, the evidence failed to show that the master suffered any loss of business on account of these alleged delinquencies. All the evidence introduced, both pro and con, in reference to the servant's conduct to his employer and his alleged neglect of duty, was before the jury.

Held: That the question of whether the servant's discharge was justifiable was properly left by the court to the decision of the jury.

3. MASTER AND SERVANT — Justifiable Discharge — Questions of Law and Fact. — As a general rule the question of justification for the dismissal of a servant by the master is for the jury. It is only where the facts are clear and undisputed that it becomes a question for the court.

4. MASTER AND SERVANT — Action for Wrongful Discharge of Servant — Whether Employment was by the Year or for an Indefinite Period — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. In 1922 the master agreed orally to pay $200.00 per month and, in lieu of commissions, a bonus of $1,200.00 at the end of the year. Under this contract the plaintiff worked in the year 1923, and again in 1924, except for a voluntary increase in his rate of monthly pay to $250.00. This agreement existed between the parties during the year 1925 until plaintiff's discharge. The existence of this agreement was recognized in writing by the employer in 1925, before plaintiff's discharge.

Held: That the jury were justified in finding that the contract between the parties was a yearly contract of employment and not a contract for indefinite term of service, terminable at will.

5. MASTER AND SERVANT — Term of Employment — Employment for a Definite Period — Continuation in Employment after Expiration of that Period. — When one enters the employment of another for a definite period (of one year or less) and continues in that employment after the expiration of that period without any new agreement, the presumption, rebuttable, of course, by evidence, is that he is again employed for a like period, and a mere increase in salary, though unexplained, is not sufficient to show any intent to convert into a monthly employment one which had commenced under a yearly contract.

6. MASTER AND SERVANT — Term of Employment — Question for Jury — Case at Bar. — In the instant case, an action by a servant against his master for wrongful discharge, the parol evidence tended to show that there was an agreement between the master and servant that the servant's salary should be $3,000.00 per year, payable monthly, and an additional $1,200.00 at the end of the year in lieu of commissions. This agreement was recognized by the master in a memorandum given to the servant at his request. This writing was not intended to constitute an original contract, but merely a memorandum of a contract previously made and existing.

Held: That, under the facts and circumstances of the case, the whole question of whether the contract was for a definite or indefinite period was for the jury, and that the memorandum, taken in connection with the parol evidence, was sufficient ground for the conclusion by the jury that the existing contract between the parties was for a term of one year.

7. PARTNERSHIP — Whether Agreement Constituted a Partnership or the Relation of Master and Servant — Share of Profits — Case at Bar. — In the instant case, an action for wrongful discharge by a servant against his master, the master, at the request of the servant, gave to the servant a written memorandum of the agreement between them, to the effect that the servant had "a drawing account of three thousand dollars per year and an additional twelve hundred dollars at the end of year for his share of the profits."

Held: That the agreement between the parties did not constitute them partners.

8. PARTNERSHIP — Partnership or Relation of Master and Servant. — Even where a contract shows that the employee is to receive a part of the profits as shown by the books at the end of the fiscal year as compensation for his services, he is not a partner. A fortiori he cannot be considered a partner when he is to receive, in part compensation, a definite sum at the end of the year as his share of the profits.

9. MASTER AND SERVANT — Term of Employment — Statute of Frauds — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. From the evidence the jury would have been justified in finding that the parol agreement of employment between the parties was either expressly or impliedly renewed at the beginning of each succeeding calendar year after it was made up to and including the year of plaintiff's discharge; that plaintiff's term of employment at the time of his discharge was, therefore, for the definite period of one year.

Held: That such being the case, the contract existing between the parties at the time of plaintiff's discharge did not come within the statute of frauds proscribing a verbal contract which was not to be performed within a year.

10. MASTER AND SERVANT — Action by Servant for Wrongful Discharge — Whether Action was Brought on Oral Contract or Written Memorandum — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. The master moved to exclude all parol evidence in relation to the contract between the parties on the ground that the action was brought on a written memorandum which failed to fulfill the requirements of the statute of frauds. From the notice of motion it appeared that plaintiff claimed under a verbal contract made both prior to the year 1925, when he was discharged, and also for the year 1925, and not upon a writing executed subsequently to the contract, signed by the master recognizing the contract and stating its terms.

Held: That the action was based on the verbal contract and not on the written memorandum, and while the writing was admissible to be considered by the jury along with other evidence for the purpose of proving the contract, it was unnecessary to discuss the question of whether the writing itself met the requirements of the statute of frauds.

11. MASTER AND SERVABT — Instructions — Statute of Frauds — Case at Bar. — The instant case was an action by a servant against his master for wrongful discharge. The servant relied on a verbal yearly contract of employment made some years before his discharge and renewed by implication each year thereafter. There was sufficient evidence to warrant the jury in finding the existence of such a contract of employment. The defendant asked for an instruction, one paragraph of which told the jury that if they believed that plaintiff was employed by defendant for the year beginning January 1st, 1925, and such contract was made before January 1st, 1925, then to entitle plaintiff to recover, the contract or some memorandum thereof must have been in writing signed by the defendant.

Held: That this paragraph of the instruction was properly stricken out for the reason that it was misleading, in that it involved the question of the statute of frauds which was not applicable to the oral contract relied on.

12. MASTER AND SERVANT — Instructions — Repetition — Taking Questions of Fact from the Jury — Case at Bar. — In an action by a servant against his master for wrongful discharge, where under the evidence the questions of whether plaintiff was actually discharged, and whether the discharge was justifiable, were for the jury, instructions for the defendant were properly refused, where the propositions set forth were covered by other instructions given in defendant's behalf, and where the instructions undertook to take from the jury the questions of whether plaintiff was actually discharged, and whether the discharge was justifiable.

13. MASTER AND SERVANT — Wrongful Discharge — Bonus. — In an action by a servant against his master for wrongful discharge, it appeared that under the terms of agreement between the parties the servant was to receive $1,200.00 as a bonus at the end of the year. Defendant asked for an instruction that plaintiff could not...