H. & L.M. Warten Cotton Co. v. McGuire

• Citation: 206 Ala. 469,91 So. 308
• Decision Date: 13 October 1921
• Docket Number: 8 Div. 377.
• Parties: H. & L. M. WARTEN COTTON CO. v. MCGUIRE.
• Court: Supreme Court of Alabama

91 So. 308

206 Ala. 469

H. & L. M. WARTEN COTTON CO. v. MCGUIRE.

8 Div. 377.

Supreme Court of Alabama

October 13, 1921

Appeal from Morgan County Court; G. O. Chenault, Special Judge.

Action by W. F. McGuire against the H. & L. M. Warten Cotton Company, a partnership, for damages for breach of contract. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

Callahan & Harris, of Decatur, for appellant.

Tennis Tidwell, of Albany, for appellee.

SAYRE J.

Appellee brought this action declaring on the common counts and specially as for the breach by appellant of a contract by which appellant had engaged the services of appellee for a stipulated term at a stipulated wage payable in monthly installments.

Appellee's case was that appellant had engaged his services for the term of six months, during which he was to have charge of appellant's cotton business at Rogersville; that without fault on his part he had been discharged from his said employment; and that continuously thereafter and during the remainder of the term he had held himself in readiness to perform his part of the contract.

Appellant contends for error in the refusal of its request for the general charge on the theory that, since appellee had not performed the stipulated services, there could be no recovery on the common counts. Assuming this question to have been properly raised on the record, the answer is that if appellee had the contract shown by his testimony, and was discharged therefrom without fault on his part, the fact that thereafter he held himself in readiness to perform, if so found by the jury, was tantamount to full performance on his part, leaving nothing to be done on either part save payment of the stipulated wage, and entitling appellee to recover on the common counts. Krou v. Verkentoren, 90 Ala. 113 7 So. 428.

Appellant sought to show on cross-examination of appellee as a witness in his own behalf that, subsequent to his discharge and within the term of the contract, appellee did work at home "in his garden, etc.," and the value thereof. The court properly ruled against the admissibility of this proffered evidence. The rule pertinent to the question thus presented is, we think, correctly stated in 3 Williston on Contracts, § 1359:

"If the employee after vainly seeking other employment"-and appellee's testimony went to show his fulfillment of this requirement of the law-"works on his own account, and thereby secures some profit, this should be deducted if the work could not have been done had the original contract remained in force."

It is not considered that such work as one performs about his premises, "in his garden, etc.," and for which he receives no reward save the satisfaction the performance of such work may bring, is a work of profit within the meaning of the quoted rule; nor did it appear in the present case that the work inquired about could not have been done had the original contract between the parties remained in force. Hence our conclusion that, as to this, no error is shown.

Appellee...