Conrad v. Ellison-harvey Co

• Decision Date: 15 March 1917
• Court: Virginia Supreme Court
• Parties: CONRAD v. ELLISON-HARVEY CO.

91 S.E. 763

(120 Va. 458)

CONRAD

v.ELLISON-HARVEY CO.

Supreme Court of Appeals of Virginia.

March 15, 1917.

Error to Law and Equity Court of City of Richmond.

Action by L. A. Conrad against the Ellison-Harvey Company. Judgment for defendant, and plaintiff brings error. Reversed, verdict set aside, and cause remanded for new trial in conformity with the opinion.

J. C. Page, of Richmond, for plaintiff in error.

Jo. Lane & Cary Ellis Stern, of Richmond, for defendant in error.

KELLY, J. L. A. Conrad, claiming to have been employed as a bookkeeper by the Ellison-Harvey Company, a corporation, for a period of one year from January 1, 1914, and to have been unlawfully discharged on June 30, 1914, brought this action of assumpsit to recover on account of his salary for the balance of the year. There was a verdict and judgment against him, and thereupon he obtained this writ of error.

Conrad's original employment with the Ellison-Harvey Company began on January 1, 1910, under a written contract which fixed his compensation at $100 per month and his term of service at one year. When the year expired, he continued in the same employment without anything being said as to a new arrangement. In May, 1911, the company, upon a recommendation made by Mr. Harvey at a meeting of the directors, increased Conrad's salary to $125 per month. So far as the record discloses, this increase was not intended to have, or regarded as having, any effect upon the term of his employment. He remained in the service of the company throughout the years 1911, 1912, 1913, and until June 30, 1914, when, as he alleges, he was discharged.

The assignments of error relate exclusively to the action of the trial court upon the in structions to the jury, which necessarily resulted in a verdict for the defendant. Refore taking up these assignments, however, it will, be in order, and will facilitate and clarify the discussion of the assignments themselves, to dispose of certain contentions of the defendant which, if sound, would defeat the plaintiff's action entirely, and make it necessary for us to affirm the judgment on the ground that no other verdict could have been properly returned, regardless of the instructions.

The first of these contentions is that the plaintiff was not in fact discharged, but quit the service of his own accord. Of this it is sufficient to say that, while the evidence is by no means clear upon the question, it was, in our opinion, one for the jury to determine. The defendants would not deal frankly with him, were moving their principal effects and main place of business out of the state, appeared to have no further position or use for him, and would give him no assurance whatever as to his future employment. Without discussing it in detail, the evidence seems to us, when viewed as a whole, to have tended to show that the company had secretly determined to drop him, and in effect had done so, before he instituted this suit and attached their estate to secure his claim. In this state of the evidence, the question whether he was discharged, or quit, was one for the jury to answer. Goldsmith v. Latz, 96 Va. 680, 685, 32 S. E. 483.

It is urged by the defendant, in the second place, that, as this is an action based upon a wrongful discharge, the plaintiff should have declared specially upon the contract and its breach, whereas his declaration contains only the common counts in assumpsit, and that therefore his action must fail. This point was not made in the lower court and cannot be successfully raised for the first time here. It is true that, when the plaintiff offered in evidence the written contract covering the original employment for the year 1910, the defendant objected, but the objection was not upon any such ground as is here suggested. The objection, and the sole objection indicated, was that the written contract "is not the contract in force in 1914, " and that the plaintiff should "be confined to proving the contract under which he is claiming." The contract for 1910 was clearly admissible for the purpose of showing the terms of the original hiring. 26 Cyc. 976, note; 20 A. & E. Eneyc. (2d Ed.) 16, note; Hermann v. Littlefield, 109 Cal. 430, 42 Pac. 443; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56; other authorities cited infra. At no time during the progress of the trial was there, so far as the record shows, any intimation that the the defendant relied upon a variance between the declaration and the proof, or upon the insufficiency or inaptness of the evidence to sustain a recovery uponthe common counts. Parties are not permitted to make one objection to evidence in the trial court and another and different one in the appellate court, but are regarded as having waived all objections save those specifically pointed out. Warren v. Warren, 93 Va, 73, 74-76, 24 S. E. 913; McCrorey v. Thomas, 109 Va. 373, 376, 63 S. E. 1011, 17 Ann. Cas. 373.

In Warren v. Warren, supra, Judge Buchanan, speaking for this court, said:

"The parties must stand or fall by the case as made in that (the trial) court. An appellate court is not a forum in which to make a new case. It is merely a court of review to determine whether or not the rulings and judgment of the court below upon the case as made there were correct. Any other rule, it has been well said, would overturn all just conceptions of appellate procedure in cases at law, and would result in making an appeal in such action a trial de novo, without the presence of witnesses, or the means of correcting errors and omissions."

Furthermore, and perhaps more directly to the point in this connection, the action of assumpsit was the appropriate remedy, if the plaintiff was entitled to recover upon the facts as proved, and, conceding that the declaration was defective, it was the duty of the defendant. If it intended to rely upon that point, to then and there call the court's attention to it. Section 3384 of the Code of Virginia, authorizing amendments, upon terms fair to both parties, whenever a variance between the pleadings and the proof develops during the trial, was expressly designed to meet just such a situation as would have been presented in the trial court if the question now made before us had been raised there. This statute has always, and most properly, been regarded with favor, and construed with liberality by the courts of this state; and its terms would have fully met the condition now complained of by defendant. Having failed to avail itself of the remedy thus provided, or to give the plaintiff or the court the opportunity to invoke it, the defendant cannot now take advantage of the irregularity which the statute would have cured. This conclusion is in accord with the well-settled policy and repeated decisions of this court. Eagles v. Hook, 22 Grat. (63 Va.) 510, 512; Langhorne v. Richmond City, 91 Va. 364, 367, 22 S. E. 357; Bertha Mineral Co. v. Martin, 93 Va. 791, 801, 22 S. E. E. 70 L. R. A. 999; Moore Lime Co. v. Johnston, 103 Va. 84, 86, 48 S. E. 557; Va. & S. W. Ry. Co. v. Bailey, 103 Va. 205. 228, 49 S. E. 33; Newport News, etc., K. Co. v. McCormick, 106 Va. 517, 518, 56 S. E. 281; N. & W. Ry. Co. v. Perdue, 117 Va. 111, 117, 83 S. E. 1058; Hawkins & Buford v. Edwards, 117 Va. 311, 317, 84 S. E. 864; Goode v. Bryant, 118 Va. 314, 87 S. E. 688; Burks PI. & Pr. pp. 5S5-587, 770.

Another contention of the defendant, urged as conclusive against the plaintiff's demand, is that he was employed in 1914 by the month and not by the year, and that therefore any action by him based upon a yearly contract must fail. In our view of the evidence the question thus presented, to say the most that can be said of it for the defendant, was one for the jury to settle. The evidence certainly tended to show, if it did not conclusively show, that the plaintiff, having been originally hired for a fixed term of one year, held over in the succeeding years of 1911, 1912, 1913, and 1914, without any new agreement or different understanding as to the term of service. The only change ever made was the increase of salary in May, 1911, already pointed out. Nothing whatever appears in the record to explain the occasion or purpose of this increase, except the uncontradicted statement of Conrad that, in the course of the original negotiations with representatives of the defendant, he was hesitating about accepting their offer of $100 per month, and called their attention to the fact that he then held an equally remunerative position which he could keep as long as he chose, whereupon Mr. Ellison, the president of the company, said:

"Well, come on with us and we will give you $100 a month now, and later on will increase you."

This statement was objected to at the trial solely on the ground that Mr. Ellison was then dead; but, when it was made to appear that Mr. Harvey also was present during the conversation, the objection was not further urged. The statement does not appear to us to be very material in any aspect of the case. If it be left out of view entirely, the mere unexplained increase in salary would not in itself be sufficient to show any intent to convert into a monthly employment one which had commenced under a yearly contract.

But the plaintiff was entitled to show, for whatever they were worth, the circumstances and negotiations under which he began his original term of service, so that they might be considered along with the original contract itself in determining the probable intention of the parties continuing the relationship after the first year had expired. The contract for the year 1911, or for any succeeding year, did not exist, and is not claimed to have existed, until the preceding year had expired; but when, after the end of each year, the employment continued, some sort of contract was necessarily implied, and the question of what this implied contract was depended upon the intention of the parties. In ascertaining this intention, it was proper for the jury to have before them the...