Dkrosia v. Firland

• Decision Date: 07 May 1910
• Citation: 76 A. 153
• Parties: DKROSIA v. FIRLAND.
• Court: Vermont Supreme Court

76 A. 153

DKROSIA

v. FIRLAND.

Supreme Court of Vermont. Franklin.

May 7, 1910.

Exceptions from Franklin County Court; Fred M. Butler, Judge. Assumpsit by Thomas Derosia against Peter Firland. There was a judgment for plaintiff, and defendant brings exceptions. Reversed, and judgment rendered for defendant.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

C. G. Austin & Sons, for plaintiff. D. W. Steel, for defendant.

WATSON, J. The declaration is common counts in assumpsit. Plea, the general issue.

The plaintiff claimed, and his evidence tended to show, that on August 12, 1907, he made a contract with the defendant whereby he was to work for the defendant as clerk and salesman in his store at Highgate Center for the term of one year from that date, for the sum of $468, payable in installments of $9 per week, with the agreement that he should be given employment for the full term; that when the plaintiff had worked 8 1/2 weeks the defendant sold his stock in the store to one Loukes, notified the plaintiff that he had no more work for him, and paid him in full for the services he had performed: that the plaintiff remained at Highgate Center during the entire year, ready and willing to work for the defendant, but was not furnished with more work, and was paid nothing by him after the time of the dismissal; that during the remainder of the year the plaintiff did some work under other employment, and, deducting what he received therefor, together with the sums received of the defendant for the services actually performed, seeks to recover here the "balance due on services" for the full term of the contract, this suit being brought after the termination of that period. It was claimed in defense, and the defendant's evidence tended to show, that he did not hire the plaintiff for the term of one year, but did hire him by the week, and paid him up to the time he was discharged. The defendant seasonably objected and excepted to the admission of any and all evidence in support of the plaintiff's claim, on the ground that the declaration is general assumpsit, and not special for breach of the contract, and at the close of the evidence the defendant moved for a verdict, for that since the testimony on both sides shows that the plaintiff was paid his wages in full up to the time of his dismissal, no recovery can be bad under the common counts in assumpsit. This motion was overruled, and an exception saved.

The plaintiff contends for and relies upon the doctrine laid down in Gandell v. Poutiguy, 4 Campb. 375, 1 Stark. 198, 2 E. C. L. 82. There the action was indebitatus assumpsit for work and labor, with the common money counts. The plaintiff, employed by the defendant at a yearly salary payable quarterly, was discharged from his service about the middle of a quarter and paid for the half quarter worked. Thereupon the plaintiff denied the defendant's power to discharge him in the middle of a quarter, and the next day made an offer to do the duties of the situation, which the defendant declined. Lord Ellenborough said, if the plaintiff was discharged without a sufficient cause, the action was maintainable. "Having served a part of the quarter and being willing to serve the residue, in contemplation of law, he may be considered to have served the whole." The doctrine of constructive service there laid down was followed in Collins v. Price, 5 Bing. 132, 30 Rev. Rep. 542, 15 E. C. L. 507, and in other English cases. It was repudiated however by Lord Tenterden in Archard v. Hornor, 3 Car. & P. 349, 14 E. C. L. 604, as early as 1828. There the first count was special on a contract by which the plaintiff agreed that he and his wife would become the servants of the defendant at certain wages, and the defendant undertook, etc., to continue them in such service until the expiration of one year. Breach, that the defendant discharged them without warning before the year had expired. Pleas, non assumpsit to the special counts, also to the other counts as to all but the sum of £11, and a tender of that sum. The tender was for the time of actual service. The plaintiff and his wife entered upon the performance of the contract in the month of December, and were discharged on the 6th day of February following. The plaintiff claimed wages for the time he had served, and for a quarter more. The evidence did not support the contract declared upon, but instead thereof showed a contract terminable at a month's notice. Consequently it was held that there could be no recovery on the special counts. And his lordship further held that wages could not be recovered under the common count for any more of the time than the plaintiff had actually served. In 1837 the case of Smith v. Hayward, 7 Ad. & El. 544, 34 E. C. L. 292, was heard before the court of King's Bench. The declaration contained a special count which was not proved, and counts for work and labor, and on an account stated. Plea, non assumpsit, and payment into court of? on the account for work and labor. The defendant employed the plaintiff for a quarter of a year and paid him therefor. The jury found that the agreement was subject to three months' notice. The plaintiff completed that quarter; but when he had worked some more than half a month on the second quarter he was dismissed by the defendant. The action was commenced three days later, the plaintiff having first offered to complete the second quarter's service. The money was paid into court as due for the time of actual service after the expiration of the first quarter. The plaintiff claimed pay for the whole quarter from that period. It was held that the action was brought too soon for any question to arise on this point. But in discussing the matter, Lord Chief Justice Denman said he thought the rule was granted for the purpose of bringing the case of Gandell v. Pontiguy into question; that the view taken by Lord Ellenborough of the point there decided was different from that which Lord Tenterden took of the same point in Archard v. Hornor, and, "if we were bound to decide between the two authorities, I should say that the later case is grounded on the better reason. There is obviously a great difference be tween suing for a breach of contract in dismissing the plaintiff and for work and labor which, by reason of the dismissal, has not been performed. The defense in the last case would be the nonperformance of the work; in the other, some excuse for breaking off the contract." The other three justices expressed themselves to the same effect. In 1847 the case of Fewings v. Tisdal, 5 Dowl. & L. 196, 1 Exch. 295, came before the court of Exchequer. The declaration was indebitatus assumpsit for work and labor as a hired servant, and on an account stated. Plea, non assumpsit. The plaintiff, when in the defendant's employ, was dismissed without previous warning, and was paid her wages up to the time of dismissal. The action was brought to recover a month's wages, commencing from the day of her discharge. The undersheriff nonsuited the plaintiff on the ground that the declaration should have been special, and that she could not recover under the common count for work and labor. The rule was discharged, Lord Chief Baron Pollock saying he regretted that the party was unable to recover her claim "in this form of count; it is not the proper form, but it should have been a special one. The case of Archard v. Harnor governs the present; it has been recognized by all the courts, and has been acted upon in this court, in the case of Broxham v. Wagstaffe, 5 Jurist, 845." Barons Parke and Alderson concurred therein, the former saying: "The good sense of the matter is to be found in Archard v. Harnor, which was afterwards confirmed by the court of Queen's Bench in the case of Smith v. Hayward, and also by this court." In Emmens v. Elderton, 13 C. B. 495, 76 E. C. L. 495, 4 H. L. Cas. 624, Mr. Justice Crampton of the Exchequer Chamber wrote as follows: "The result of the modern authorities, as to the remedies of a servant wrongfully discharged, is well discussed in the passage in 1 Smith's Leading Cases, 67. He is said to have the election of treating the contract as continuing, and suing for damages for the breach by the discharge; or of treating it as, and acquiescing in its being, rescinded by the wrongful act of the master, and bringing an action on the quantum meruit for the work actually performed; and, it is added, that he may wait till the termination of the period for which he was hired, and may then, perhaps, sue in indebitatus assumpsit for the whole wages, relying on the doctrine of constructive service. It is clear, since the decision of Fewings v. Tisdal, that this last remedy cannot be maintained in the shape of indebitatus assumpsit, for the simple reason that the allegation of his being indebted for work done is untrue." To the same effect are Goodman v. Pocock, 15 Ad. & El. (N. S.) 576, 69 E. C. L. 576; Wood v. Hayes, 1 Wkly. Rep. 166.

The exact question now presented does not seem to have been directly passed upon by this court. Yet in several cases determined by it kindred questions have been involved, and the decisions rendered are consonant with the rule which finally obtained in England, and are quite controlling in the case before us. In Derby v. Johnson, 21 Vt. 17, the action was book account, and the plaintiff presented an account for labor performed, and for materials furnished, by them, in the prosecution of work under a special contract by which the plaintiffs agreed with the defendants to do all the stone work and blasting on a certain piece of railroad, at prices specified. After the plaintiffs had worked a month in performance, the defendants directed and requested them to cease labor and to abandon the further execution of the contract, in consequence of which the plaintiffs immediately ceased laboring under the contract and abandoned its further execution. The auditor, finding...