Fitzpatrick Square Bale Ginning Co. v. McLaney

• Decision Date: 28 November 1907
• Citation: 44 So. 1023,153 Ala. 586
• Parties: FITZPATRICK SQUARE BALE GINNING CO. v. MCLANEY.
• Court: Alabama Supreme Court

44 So. 1023

153 Ala. 586

FITZPATRICK SQUARE BALE GINNING CO. v. MCLANEY.

Supreme Court of Alabama

November 28, 1907

Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.

Action for money had and received by the Fitzpatrick Square Bale Ginning Company against Robert McLaney. From a judgment for defendant, plaintiff appeals. Affirmed.

The first count of the complaint is in statutory form for money had and received. The second count alleges an employment of defendant by plaintiff, and a receipt by defendant from plaintiff of various sums of money by virtue of such employment, to be used and expended by him in and about the business of plaintiff; a discharge of defendant, and an accounting as to the money in the custody and control of the defendant belonging to plaintiff in the sum of $203.50; a demand and refusal, etc. The defendant filed special plea No 3, among others, as follows: "Now comes the defendant and as a defense to the action of the plaintiff saith that at the time said action was commenced the plaintiff was indebted to him in the sum of $135, due by the plaintiff to the defendant from September 29, 1906, to December 13, 1906, as damages due by the plaintiff to the defendant, in this: That on the 16th day of August, 1906, a contract or agreement was entered into between the plaintiff and the defendant, whereby the defendant was to work and labor for the plaintiff as superintendent of its ginnery plant at Fitzpatrick, Ala., for the period of five months from said date, at the rate of $55 per month, and that on the 29th day of September, 1906, the defendant was discharged by plaintiff without fault on his part, and that from said time until the expiration of the period covered by said contract the defendant held himself ready to perform the services which he contracted to perform which he hereby offers to set-off in the sum of $135.66 as due by plaintiff to defendant for services from September 29 1906, to December 13, 1906, against the demands of the plaintiff, which sum is still due the plaintiff by the defendant and unpaid." Demurrers were interposed to this plea as follows: "That said plea does not show that the defendant has been damaged by his discharge, in that he failed after reasonable effort to obtain employment of a similar character in that community. The plea does not show that defendant made any effort to obtain any employment of a similar character in that community and failed after his discharge by the plaintiff." These demurrers were overruled.

The evidence tended to show an employment of defendant by plaintiff to superintend its ginnery during the ginning season for about five months, satisfactory service in the meantime, at $55 per month. The general manager testified as to the verbal contract, and that after returning to his headquarters he wrote a letter confirming the contract, as was his custom. He testified, also, that the defendant was to give his entire time and attention to superintending the business, buying seed, etc., and making daily reports on blanks to be furnished. It was admitted that 31 of these were made; but it was contended that 14 of them were signed by some other person than the plaintiff. The letter above referred to is as follows: "August 16, 1906. Mr. Robert McLaney, Superintendent, Fitzpatrick, Alabama: In accordance with our conversation this morning, we will give you $55 per month as superintendent to take charge of the Fitzpatrick ginnery for the season of 1906-07, which will comprise about five months; satisfactory service in the meantime. I am writing the Atlanta office by to-day's mail to send you check for $150 for current expenses and to pay for wood as it comes in, so will ask you to take receipts for everything keeping a correct record of the same, and forward receipts to me as you get them, until I can get down there to start you off. Please acknowledge receipt of this letter." This letter was never answered. Mr. Tillery testified that he was ginner at the time and made out reports for Mr. McLaney sometimes at Mr. McLaney's direction and consent. The other evidence sufficiently appears from the opinion.

In his oral charge to the jury the court, among other things, said "that in determining whether or not the contract made between the plaintiff and the defendant contained a provision for satisfactory services, if they believe from the evidence that the contract between the plaintiff and the defendant was completed at Fitzpatrick at the time testified to, and no stipulation was then made for his services being satisfactory, they could not consider said term 'satisfactory service' as being part of the contract even though the general manager of the plaintiff on the same day, after his return to Union Springs from Fitzpatrick, wrote the defendant the letter offered in evidence which stated that defendant's employment was subject to satisfactory service. The contract was made at Fitzpatrick, and contained no agreement or understanding that the defendant's services should be satisfactory. The plaintiff could not incorporate that term in the contract afterwards by writing the letter offered in evidence, and the fact that the letter was received by the defendant on the same day, and no objection to its terms was made by him to the plaintiff, did not bind him or make the letter a part of the contract, even though, after it was received by him, he continued in the service of the plaintiff; and if the contract had been previously made at Fitzpatrick, as testified to by the defendant, it was not incumbent upon him to take any notice of said letter." Objection was made to the following part of the oral charge: "That if the jury believe from the evidence that the defendant had failed himself to make out and sign the daily report which had been required of...