Helwig v. Aulabaugh

• Decision Date: 20 February 1909
• Docket Number: 15,502
• Parties: ALBERT HELWIG, APPELLEE, v. GEORGE N. AULABAUGH, APPELLANT
• Court: Nebraska Supreme Court

120 N.W. 162

83 Neb. 542

ALBERT HELWIG, APPELLEE, v. GEORGE N. AULABAUGH, APPELLANT

No. 15,502

Supreme Court of Nebraska

February 20, 1909

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

T. W Blackburn, for appellant.

Isidor Ziegler, contra.

OPINION

ROSE, J.

This is an action by an employee against his employer for damages for breach of the contract of employment. The material facts alleged in the petition may be summarized as follows: By exchange of letters in due course of mail plaintiff was hired for a year as a cutter and workman in defendant's furriery in Omaha, upon the following terms: From August 1 1905, to September 4, 1905, plaintiff was to receive $ 16.25 a week; from September 4, 1905, to January 20, 1906, $ 25 a week; and from January 20, 1906, to August 1, 1906, $ 16.25 a week. Plaintiff entered upon the duties of his contract and continued in defendant's employ for a period of seven months, or until March 5, 1906, when he was wrongfully discharged in violation of his contract and deprived of his wages of $ 16.25 a week from March 5, 1906, to July 31, 1906, amounting to $ 346.66. An unpaid balance of $ 10 increased his claim to $ 356.66. Between March 5, 1906, and August 1, 1906, plaintiff, though ready and willing to perform his part of the contract in full, obtained employment elsewhere and received as compensation $ 55.50, and was unable to obtain other employment or earn a greater sum. The prayer was for judgment for $ 301.16, or the difference between what he should have received under his contract and the amount earned after he was discharged.

In the answer defendant admitted plaintiff was in his employ for seven months, but alleged he left it voluntarily March 3, 1906, confessing his inability to perform his duties, was paid in full for his services, and never afterwards returned or offered to return to defendant's employ. In addition the answer alleges: "Defendant denies each and every allegation in said petition contained, save and except as same may be admitted or pleaded to in this amended and substituted answer. * * * Defendant admits that after plaintiff left defendant's employ he was engaged in other employment, but defendant does not know with whom he was employed, when, where or how long he was employed, or what compensation he received." The allegations of defense are denied by a reply. The trial resulted in a verdict and judgment for plaintiff for $ 308.14. Defendant appeals.

The question of the making of the contract was not submitted to the jury by an instruction, and this is assigned as error on the ground that it took from the triers of fact an issue raised by the pleadings. In this connection it is argued that the letters were erroneously admitted in evidence and that the existence of the contract was not established. It was shown by competent testimony that the letters from defendant were received in due course of mail in answer to letters written to him by plaintiff, and that in pursuance of defendant's correspondence plaintiff came from Minneapolis to Omaha on transportation inclosed in one of the letters, and worked for defendant seven months receiving weekly the stipulated wages. The letters were properly admitted in evidence. People's Nat. Bank v. Geisthardt, 55 Neb. 232, 75 N.W. 582. Defendant offered no evidence to question the genuineness of the letters or to dispute the testimony relating to them, and they showed...