Dixon v. Volunteer Co-op. Bank
| Decision Date | 28 January 1913 |
| Parties | DIXON v. VOLUNTEER CO-OP. BANK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan 28, 1913.
Arthur
D. Hill and Alexander G. Grant, both of Boston, for plaintiff.
Swain Carpenter & Nay, of Boston, for defendant.
1. The defendant cannot complain that the jury were allowed to find that the plaintiff's employment was for a year. The director's records state that 'Director Merrick nominated Henry J. Dixon to be attorney of the bank for the current year,' and thereupon it was voted that Swain (the present attorney) and Dixon (the plaintiff) be considered as nominees, and on the roll being called the plaintiff was declared elected, it 'being understood that all conditions shall be continued as by his predecessor, Mr. Swain.' It also appeared from the directors' records that in each of the years 1905, 1906, 1907, 1908, 1909 and 1910 it was voted that Swain 'be the attorney for the bank for the ensuing year.' There was ground for contending that the vote by the directors under which the plaintiff was elected as matter of law made his employment one for a year. But, however that may be, the votes stated above taken together warranted a finding to that effect. The jury were not bound to believe Swain's testimony that he had not been elected by the year. Lindenbaum v. N. Y., N.H. & H. R. R., 197 Mass. 314, 84 N.E. 129.
The exception to the first ruling asked for must be overruled. [1]
2. The exception taken to the refusal to give the fourth ruling asked for [2] must be overruled. Even if the rule of damages there stated had been the rule which should have been applied in the case at bar, the result would have been that the plaintiff would have been entitled to nominal damages, not that the defendant would have been entitled to a verdict.
3. This brings us to the exception taken to the rule of damages which the presiding judge told the jury to follow in rendering their verdict in case the question of damages was reached by them.
Whether the judge was wrong in instructing the jury as he did depends upon the case which had been made out in evidence including the contentions which the parties had made on that case.
The plaintiff brought this action to recover damages for breach by the defendant of its contract to employ him as its attorney for the year ending January 18, 1912. Under the verdict rendered in this court he was wrongfully dismissed on February 15, 1911, when less than a month of the year had expired.
The plaintiff had been admitted to the bar in August, 1908, and 'began his practice of law in the fall of 1908,' that is to say, a little over two years before the defendant agreed to employ him as its attorney for a year. The work which the plaintiff was to do under his employment by the defendant consisted in examining titles to land offered to the bank as security for loans to be made by it to the applicants. For these services he was to be paid by the applicants, not by the bank.
It was agreed that the attorney employed by the bank in place of the plaintiff 'earned from January 18, 1911, to January 18, 1912, as fees from borrowers for work he did in examining titles on loans made by the defendant bank during said period, the sum of $1,320.63; that he received no payments direct from the defendant bank for any services during said period, because of the fact that no services had been required of him by said bank or been performed by him during said period.' This was all the evidence bearing on the question of damages.
The record does not disclose what the contentions of the parties were upon the damages due to the plaintiff except so far as they may be gathered from the fourth ruling asked for by the defendant, which is stated above.
The instruction given to the jury was as follows: 'If the plaintiff is entitled to recover, the plaintiff is entitled to have what you would find would be the loss to him by the failure on the part of the defendant company to give him such work as might be reasonably expected by him during the year.'
In his fourth request for a ruling the defendant has assumed that the rule of damages which should be applied in the case at bar is the rule applicable in a case where there is a wrongful discharge of an employé all of whose time (under the contract of employment which has been broken) was to be given to the employer. It is not necessary to decide whether the rule applicable in that case was or was not correctly stated in the fourth request. The matter is discussed and the authorities are collected in Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 85 N.E. 877. For that rule has nothing to do with this case. Before the plaintiff was wrongfully discharged by the defendant from his position as its attorney he had a right to take on additional work without accounting to the defendant for the profits derived from it. That right was not lessened by the defendant's breach of its contract with the plaintiff by wrongfully discharging him from his position as its attorney. Under the contract broken by the defendant the plaintiff's time did not belong to the defendant. The plaintiff was not the defendant's servant and so bound on being wrongfully discharged to make use of his time (which under the contract...
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