Dugan v. Anderson

Decision Date21 June 1872
Citation36 Md. 567
PartiesJOSEPH OSBORN DUGAN v. ROBERT S. ANDERSON.
CourtMaryland Court of Appeals

APPEAL from the Superior Court of Baltimore City.

This was an action brought by the appellee against the appellant for the breach of a contract. The facts of the case are stated with sufficient fulness in the prayers of the respective parties and in the opinion of the Court.

First Exception: After evidence had been offered on both sides, the plaintiff further proved by J. Edward Bird that he had been for many years a dry goods merchant in Baltimore, and the plaintiff had been in his employment as a clerk, salesman and superintendent for sixteen or seventeen years, down to 1861, when he went to Neale's. The plaintiff's counsel then proposed to ask the witness the following question:

Please state what you know of his habits of punctuality, attention to his duties and efficiency, while in your employment. The defendant's counsel objected to the question as not applicable by way of rebuttal to any of the defendant's proof, and because it was irrelevant, and related to a time anterior to that covered by the defendant's proof.

The Court (DOBBIN, J.) overruled the objection, on the ground that according to the recollection of the Court, the testimony of the defendant's witness, Fisher, had impugned the character of the plaintiff in the particulars inquired of, while at Neale's. Thereupon the question being put, the witness testified, that while in his employment, the plaintiff was a capable and efficient salesman, attentive to business and of unexceptionable habits. The defendant excepted to both the question and the answer.

Second Exception: The plaintiff offered the three following prayers:

1st. If the jury shall find from the evidence that the plaintiff was employed by the witness, Neale, at a salary of $2,000 a year and that at that time there was a firm composed of the defendant and the witnesses Bowen and McCabe, existing under the articles of co-partnership offered in evidence; and if they shall further find, that while the plaintiff was so employed by said Neale, the defendant agreed with the plaintiff, without any condition as to plaintiff being taken on trial, that if the plaintiff would give up his employment under said Neale, the defendant would take the plaintiff into the employment of himself and said Bowen, as remaining members of said firm, after the retirement therefrom of said McCabe, until the 1st of March, 1871, and would allow the plaintiff for his services until said time, the share of the profits of said business which would have accrued to said McCabe as a member thereof to said time, had said McCabe remained in said firm, and in case said share of said McCabe of said profits should be less than at the rate of $1,500 per annum, the plaintiff should receive compensation for his services to March 1st, 1871, at the rate of $1,500 per year and if they shall further find that the defendant, at the same time, also promised and agreed with the plaintiff as aforesaid, that the plaintiff should, on the 1st of March, 1871, become a partner with the defendant and said Bowen in their business for one year certain, and receive one-third of the profits of said business; and if they shall further find, that in consideration of the said promises of the defendant to employ the plaintiff until the 1st of March, 1871, and at that time to admit him as a partner, the plaintiff did give up his employment under said Neale, and did enter the service of said defendant and said Bowen as proposed; and if they shall further find that the plaintiff continued in the service of the defendant and Bowen until he was discharged and removed therefrom by the defendant, and that the plaintiff, before the institution of this suit, offered and tendered to continue to serve said defendant and Bowen until the 1st of March, 1871, and then to become a partner in said business under the agreement aforesaid, but that the defendant, before the institution of this suit, denied that there was any such agreement between himself and the plaintiff, as is above set forth, and refused to permit the plaintiff to continue in the services of defendant and Bowen until the 1st of March, 1871, and then become a partner in said business as aforesaid, and required the plaintiff to leave the employment of said defendant and Bowen, and forbade him to be and remain in the store in which said business was conducted, and denied that the plaintiff was entitled to become a partner in said business from March 1st, 1871, and refused to receive him as such when that time should arrive; and if they shall further find that the defendant did not, at any time before March 1st, 1871, retract his said action towards the plaintiff, and offer to receive him again into the employment of himself and said Bowen until the 1st of March, 1871, and then to admit him as a partner in said business as aforesaid, then the plaintiff was entitled to institute this suit at the time it was brought, to recover as for a breach of the entire contract above required to be found.

2d. If the jury find the facts in the first prayer, then the plaintiff is entitled to recover, unless the jury shall find that the acts of the defendant towards the plaintiff, therein set forth, were occasioned by some substantial incompetency or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant, after the inception of the contract, acquiring a knowledge of some unfitness or disqualification of the plaintiff to perform said contract on his part, unknown to the defendant at the inception of the contract.

3d. If the jury find the facts in the plaintiff's first prayer, the defendant had no right to terminate said contract without compensation to plaintiff, merely because the defendant believed that said contract would not be profitable.

The defendant offered the eight prayers following:

1. The writ in this action having been issued prior to the 1st of March, 1871, the question of damages for the alleged refusal of the defendant to take the plaintiff into partnership on that day, under the contract to that effect alleged and sought to be set up, is not before the jury for consideration.

(2. Prayer withdrawn.)

3. If the jury shall find from the evidence that the plaintiff was employed by the defendant on trial, the defendant had a right to discharge him at pleasure, and the plaintiff can recover no damages for such discharge.

4. If the jury shall find from the evidence that the defendant's taking the plaintiff into partnership was to depend upon its being satisfactory to him to do so, on the 1st of March, 1871, the plaintiff is not entitled to recover any damages for the refusal of the defendant so to take him.

5. Even if the jury shall find that the defendant employed the plaintiff until the 1st of March, 1871, to act as superintendent and otherwise in the store on Gay street, without any stipulation that the defendant might discharge him for incapacity, misconduct or inattention, the defendant still had the lawful right to discharge him, if the jury shall find that he was incapable of discharging the duties so prescribed, or was inattentive thereto, or negligent thereof, or failed otherwise suitably and faithfully to comply with his obligations.

6. Even if the jury shall find that the defendant agreed to take the plaintiff into partnership on the 1st of March, 1871, as alleged and sought to be proven by the plaintiff, the defendant had still the lawful right to refuse to do so, if the jury shall find that the conduct of the defendant in the intermediate time was such as to shew that he was incapable of discharging the duties which he was to perform in such partnership, or was so neglectful or careless, or of such habits and conduct as, in the opinion of the jury, would have rendered such partnership a failure for the purposes in contemplation of the parties in its formation.

7. That there is no evidence in the cause of any request or demand addressed by the plaintiff to the defendant to take him into partnership on the 1st of March, 1871, or of any tender of his readiness to enter into such partnership, or any refusal of the plaintiff to take him into the same, and the plaintiff cannot therefore recover any damages on account of any alleged failure or refusal of the defendant so to do.

8. That even if the jury should find for the plaintiff under the Court's instruction, and should deem it proper under said instructions to find damages for the plaintiff for breach of the alleged contract to take the plaintiff into partnership on the 1st of March, 1871, the jury are nevertheless not authorized to give any greater damages for the breach of said contract than one-third of the net profits of the business for one year from that period, less such amount as the jury may find that the plaintiff has otherwise earned, or might or ought, by due and reasonable industry and diligence, to have earned during such part of said year, as has already elapsed, and may and ought so to earn during the remainder thereof, in the judgment of the jury.

The defendant excepted to the first prayer of the plaintiff, because there was no evidence to support it in several particulars:

1st. There is no evidence in the cause that the withdrawal of the plaintiff from the service of Neale was any part of the consideration of the agreement or understanding between the plaintiff and defendant, or was involved in the same in any other way than that the plaintiff could not possibly go into Dugan's service without going out of Neale's--the only consideration proven being the engagement of Anderson on the one side to render certain services, and the agreement of...

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17 cases
  • Stanford v. McGill
    • United States
    • North Dakota Supreme Court
    • November 1, 1897
    ... ... Knight , ... also, the argument of convenience appears to have had a great ... weight with Lord Chief Justice Cockburn. In Dugan v ... Anderson , 36 Md. 567, the court, while not deciding ... the question, seems to have been governed in the utterance of ... its dictum on ... ...
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