H.J. McGrath Co. v. Marchant

Decision Date28 February 1912
Citation83 A. 912,117 Md. 472
PartiesH. J. McGRATH CO. v. MARCHANT.
CourtMaryland Court of Appeals

Appeal from Baltimore City Court; John J. Dobler, Judge.

Action by Otis V. Marchant against the H. J. McGrath Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

William A. Wheatley, for appellant. Beverly W. Mister, for appellee.

THOMAS J.

This suit was brought to recover damages for the breach of an alleged oral contract by which the defendant employed the plaintiff for one year from May 1, 1909, to April 30, 1910 provided the defendant continued in business that long, and agreed to pay him a salary of $25 per week for the first six months, and $20 per week for the remaining six months of the year.

The declaration contains six of the common counts and two special counts. The seventh count alleges that in the early part of the year 1909 the plaintiff and defendant "agreed that the plaintiff should serve the defendant as a buyer of fruits, etc., including all duties usually assumed by buyers in the canned goods business, and that the defendant should employ the plaintiff as such for one year from May 1, 1909 and pay him for his services the sum of $25 per week for the first six months of his contract, and $20 per week for the remaining six months of the year, provided the business should be continued during the term of said contract" that the plaintiff entered upon the service of the defendant and has ever since been ready and willing to continue in such service; "that on the 12th day of February, 1910, the defendant wrongfully discharged the plaintiff and refused to permit him to serve as aforesaid, although the said business of the defendant was continued until after May 1, 1910, and has never paid him the balance due on the said contract although requested to do so by the plaintiff." The eighth count charges that on the 2d of May, 1908, the plaintiff and defendant agreed in writing that the plaintiff should serve the defendant as buyer of fruits, etc., and that the defendant should employ the plaintiff as such for one year from said date and to pay him for his services the sum of $25 per week for the first six months, and $20 per week for the remaining six months of the year; that the plaintiff entered into the service of the defendant under said contract, and that, shortly before the end of said year, the plaintiff and defendant agreed that the contract should be continued for another year, beginning on the 1st day of May, 1909, and ending on the 30th day of April, 1910, "under the same terms and for the same services as set out in their original contract, provided that the business of the defendant should be continued for that length of time"; that the plaintiff accordingly remained in the service of the defendant until February 12, 1910, when the defendant wrongfully discharged him; that the plaintiff has always been ready and willing to perform such services, but the defendant refused to permit him to do so, and has refused to pay the balance due him under said contract, notwithstanding the business of the defendant was continued beyond the 1st day of May, 1910. Issue was joined on the general issue plea, and the trial of the case before a jury resulted in a verdict and judgment in favor of the plaintiff for $201.50, from which judgment the defendant the H. J. McGrath Company, a corporation, has appealed.

The defendant filed a motion for a new trial, and while that motion was pending, on the 26th of May, 1911, the court extended the time for filing the bill of exceptions in the case "until thirty days after the motion for a new trial is heard and determined by this court." The record contains the following docket entry: "10th June, 1911--New trial to be granted, unless the plaintiff shall within ten days from this date, agree to a reduction of the verdict from $201.50 to $150.00," etc. The docket entries further show that the motion for a new trial was overruled on June 21, 1911, and on June 28th the time for filing the bill of exceptions was again extended, and thereafter regularly extended until the exceptions were filed. The appellee has made a motion to dismiss the appeal on the ground that the time for filing the bill of exceptions was by the terms of the first order extended to 30 days after June 10, 1911, the contention of the appellee being that the motion for a new trial was heard by the court on June 10th, that the court on that day ruled that the new trial be granted unless the plaintiff agreed to a reduction of the verdict, etc., and that that was a complete "determination by the court" of the motion. The answer to this contention is that the order extended the time until 30 days after the motion for a new trial "is heard and determined by the court," and that, while it does not appear when the motion was heard, the docket entries show that the motion for a new trial was not "determined" or disposed of until June 21, 1911, when it was overruled, and on the same day a judgment was entered on the verdict in favor of the plaintiff. The motion to dismiss the appeal must therefore be overruled.

But one exception was reserved during the trial, and that is to the ruling of the court on the prayers. It appears from the evidence that the defendant was engaged in the business of canning fruits, vegetables, and oysters, and that the plaintiff had been employed by the defendant for a number of years, and was paid a salary of $25 per week for the first six months, and $20 per week for the remaining six months of the year; that for the year commencing May 2, 1908, the contract was in writing; that Mr. McGrath died in February 1909, and, after his death, it was for a while uncertain whether the business of the defendant "would go on." The plaintiff states that about 10 days before the expiration of the year ending May 1, 1909, Mr. Hamberger, the manager of the appellant company, said to him: "Mr. Marchant, I understand you, and you understand me. You do not need no written contract with me. You are dealing with me now, and, if this business continues, your position is assured with the terms the same;" and that he, the plaintiff, said in reply: "Mr. Hamberger, I am perfectly satisfied. If that contract suits you, it certainly suits me, and your word is sufficient, and I am dealing with you now, and not with Mr. McGrath." It further appears from the evidence that the plaintiff continued in the service of the defendant until February 12, 1910, and that he received during the first six months of the year commencing May 1, 1909, $25 per week. The plaintiff says that the defendant continued to pay him $25 per week for some time after the expiration of the first six months of the year, and that Mr. Hamberger said to him that they had him down on his pay roll for $20 per week, but that he had told the bookkeeper to pay him $25 per week, that he appreciated that the extra $5 was more to the plaintiff than it was to the defendant, and that they would continue to pay it as long as they could; that he received $25 per week...

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