Hazen v. Cobb

• Decision Date: 10 July 1928
• Citation: 96 Fla. 151,117 So. 853
• Parties: HAZEN v. COBB et al.
• Court: Florida Supreme Court

117 So. 853

96 Fla. 151

HAZEN v. COBB et al.

Florida Supreme Court, Division A.

July 10, 1928

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action by H. D. Hazen against C. C. Cobb and another, doing business as the Cobb-Vaughan Motor Company, formerly doing business as the Cobb Motor Company. Judgment for defendants, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Employer under contract authorizing termination whenever he deemed employee incapable of serving employer in profitable manner could not terminate contract arbitrarily; discharge of employee under contract authorizing termination, if employee was incapable of serving employer in profitable manner, must have reasonable relation to employee's capacity vel non employer, discharging employee under contract authorizing termination when deeming employee incapable of profitably serving him, must act in good faith. Where a contract of employment for one year gave the employer the right to terminate it whenever he deemed the employee incapable of serving him in a profitable manner, the employer would not thereby be jusitified in terminating the contract and discharging the employee arbitrarily and without reason. The ground of discharge must have had some reasonable relation to the employee's capacity vel non to serve the employer in a profitable manner, and the employer must have acted in good faith.

Pleading need not by its averments anticipate defense and negative or avoid it. A pleading need not by its averments anticipate a defense thereto and negative or avoid it.

Pleading must not be ambiguous or doubtful of meaning; construction of pleading having two different meanings will be adopted which is most unfavorable to party pleading. Pleadings must not be ambiguous or doubtful in meaning, and, when two different meanings present themselves, that construction will be adopted which is most unfavorable to the party pleading.

Declaration for breach of contract should set forth breach relied on with reasonable certainty; breach of contract may be assigned in words of contract either negatively or affirmatively, or in words coextensive with import and effect thereof. In a declaration for breach of contract, the breach relied on should generally be substantially set forth and with reasonable certainty. It is as a rule sufficient to assign a breach in the words of the contract, either negatively or affirmatively as the case may require, or in words which are coextensive with the import and effect of the contract.

Allegations in action for breach of contract of employment that employer had without provocation breached contract held insufficient. In an action for breach of contract, an allegation that the defendants had, without provocation on plaintiff's part breached the contract by discharging the plaintiff, is not sufficient, where the contract gave the defendant the right to discharge the plaintiff under certain circumstances. Non constat the discharge may have been upon the ground permitted by the contract.

Humiliation by reason of discharge is not element recoverable as damages for breach of contract of employment. Humiliation of plaintiff by reason of his discharge is not an element of recoverable damages in action for damages for breach of contract of employment.

Ordinarily count in special assumpsit for breach of contract, alleging breach and damages claimed, is not demurrable. Ordinarily, a count in special assumpsit for damages for breach of contract, which alleges with reasonable certainty the consideration, the promise or contract, the breach, and the damages claimed, states a cause of action and is not subject to demurrer.

Demurrer is not proper remedy to test sufficiency of declaration for breach of contract alleging damages. Where there is in the declaration for breach of contract an allegation or claim of damages, demurrer is not the proper method to test its sufficiency. Demurrer tests the cause of action.

Losses necessarily resulting from breach of contract are recoverable under general allegation of damages being presumptively within contemplation of parties. Losses that necessarily result in the usual course of things from the breach of a contract are presumed to have been within the contemplation of the parties, and may be recovered under a general allegation of damages without being separately pleaded.

Refusal of motion to require production of certain books or office records held not error without showing of pertinency or materiality (Comp. Gen. Laws 1927, § 4405). In order to put the trial court in error for denying a motion to require the opposing party to procure certain books or office records under the statute, it should appear from the record that some reasonably sufficient showing was made to the trial court of the pertinency or materiality of such books or documents.

Assumpsit lies for recovery of damages for breach or nonperformance of simple contract, or on implied contract. Assumpsit lies for the recovery of damages for the breach or nonperformance of a simple contract, oral or written, or upon a contract implied by law from the acts or conduct of the parties.

Contract must be declared on specially in 'special assumpsit' for damages for breach thereof; 'general assumpsit.' There are two grand divisions of assumpsit actions: General assumpsit, upon the common counts; and special assumpsit, for damages for the breach of an express contract, oral or written. In the latter case, the contract must be declared upon specially. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Assumpsit; Second Series, General Assumpsit; Special Assumpsit.]

Implied contract is only basis of action of general assumpsit on common counts; special assumpsit is founded solely on express contract. In general assumpsit on the common counts, an implied contract is the only basis of the action, while special assumpsit is founded solely upon an express contract.

Special contract, in action of general assumpsit, is not ground of right of recovery, though sometimes admissible as pertinent to amount thereof. Where there has been a special contract, and the plaintiff brings general assumpsit, the special contract is not the ground of plaintiff's right of recovery, though it may in many cases be admissible in evidence as pertinent to the amount of such recovery, as bearing upon such questions as the value of services actually performed or materials furnished by the plaintiff and accepted by the defendant.

General assumpsit rests only on implied contract on legal liability springing from consideration received. General assumpsit rests only on an implied contract, a legal liability springing out of a consideration received.

Plaintiff, pleading breach of simple, unexecuted contract, must declare specially; general assumpsit will not lie for breach of express simple, unexecuted contract; law will not imply contract, where express one exists. When an express simple contract remains open and unexecuted, and plaintiff proceeds for a breach of it, he must declare specially. General assumpsit will not lie. The law will not imply a contract, where an express one exists.

Plaintiff, suing on fully performed express contract, may declare specially on original contract, or generally on common counts; plaintiff, declaring generally on common counts for performance of express contract, may introduce special contract to show value of services, or materials. Where an express contract has been fully performed on plaintiff's part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply against him, plaintiff may declare specially upon the original contract, or generally upon the common counts; and, if the latter, he may introduce the special contract to show the value of the services performed or the materials furnished.

Recovery may be had on common counts on express contract partially performed or otherwise put to an end for actual value of services rendered or materials furnished. Where an express or special contract has been partly performed by plaintiff, but has been put an end to by mutual consent of the parties, or act of the defendant, or act of God, or the contract for technical deficiencies in its execution is not legall enforceable, and the part performance thereof was beneficial to the defendant and accepted by him, or full performance waived, the plaintiff may recover on the common counts the actual value of the services rendered or materials furnished; and in such cases the evidence of the express contract may usually be admitted as tending to show the actual value of such services rendered or materials furnished.

Remedy for recovery of damages for breach of executory contract for profits lost because full performance was prevented is by special, and not general, assumpsit. If a party desires to recover damages for the breach of an executory contract, not for the value of the services or materials actually rendered or performed prior to the breach, but for the compensation or profits he might have thereafter derived if full performance had been permitted, his remedy is by special, not general, assumpsit.

Cause of action for breach of contract arises on unreasonable discharge of employee under contract for definite term. A cause of action for an entire breach of the contract immediately arises upon the wrongful discharge of an employee under a contract for a definite term, and it is not necessary to await the termination of that period before filing suit.

Measure of damages ordinarily recoverable for breach of contract of employment is salary or wages for unexpired term, together with unpaid balance due....