In re Fowler

• Decision Date: 01 January 1860
• Citation: 25 Tex. 695
• Parties: HUNLEY V. FOWLER v. LEROY T. WALLER.
• Court: Texas Supreme Court

25 Tex. 695

HUNLEY V. FOWLER

v.LEROY T. WALLER.

Supreme Court of Texas.

1860.

Where there is no error in the charge as given, this court has frequently decided that it will not reverse the judgment because the instruction to the jury was not sufficiently comprehensive. In such case, the party dissatisfied with the charge should ask for a further instruction to supply the deficiency.

An overseer discharged, without sufficient cause, by his employer before the expiration of the period for which he has been engaged, is entitled to recover for the time during which he had served according to the contract price, and also to recover such damages as he has suffered in consequence of being improperly turned out of employment; the whole not to exceed what he would have received if he had remained and performed his contract.

The rule that he cannot, in any event, recover beyond the amount to which he would have been entitled had the contract been fulfilled, applies as well to a case where the overseer is to receive a portion of the crop for his remuneration, as to that in which a stipulated price in money is agreed on.

In a suit for damages by an overseer for being wrongfully discharged, a verdict in his favor is not supported by the evidence when it does not appear that the plaintiff sought for employment, and failed to get it, after he was discharged, nor that he did not obtain employment, nor any other fact alleged by him as constituting his damage is made to appear by proof. Under such circumstances the plaintiff would be entitled to recover under the rule laid down for the time during which he has served according to the contract price, and such damages in addition thereto as he might show by proof he had sustained.

APPEAL from Smith. Tried below before the Hon. R. A. Reeves.

This was a suit brought by Leroy T. Waller against Hunley V. Fowler for damages, laid at one thousand dollars, for the alleged violation by the defendant of his contract with the plaintiff, employing him as his overseer from the 16th day of April, 1857, during the balance of said year; the plaintiff's petition averring that, for his services, the defendant agreed to pay him the one-twentieth part of the wheat, corn and cotton crops grown on defendant's plantation.

The plaintiff alleged performance on his part, and that on the 6th day of August of said year, without any just cause the defendant discharged him from his service. Plaintiff alleged that the inducement which prompted the defendant to discharge him, was that the crops had been “laid by,” and there being a prospect for a heavy corn and cotton crop. He alleged that he was an overseer by occupation, with a family dependent upon him for support; that being discharged at a time when the services of overseers were not in demand, he was, in consequence thereof, thrown out of employment.

That one-twentieth of the cotton crop was worth five hundred dollars, that said proportion of the corn crop was worth two hundred dollars. By amended petition he averred that, by the terms of the contract, defendant agreed to furnish him with a house as a residence for his family during said year, of which he was deprived by the said act of the defendant, which said house was worth five dollars per month, and by loss of time and expense in removing to another house, cost him fifty dollars, to his damage one hundred dollars.

The defendant pleaded in justification the incompetency and bad habits of plaintiff (in respect to intoxication and unsuitable familiarity towards the negroes under his charge); and, in reconvention, damages sustained by the negligent and unskillful management of the defendant's business, and in offset an account of one hundred and eighteen dollars and sixty-five cents, the items of which consisted of divers charges for articles of provision, balance of fifty dollars on a jackass, five bushels of wheat, and three months' hire of a negro girl.

The plaintiff supported by proof his allegations respecting the contract, and the fact as to his discharge. He also proved that defendant made from said crop eight hundred bushels of corn; that in the succeeding spring it was worth from one dollar and twenty-five cents to one dollar and fifty cents per bushel. One of the witnesses stated that he counted thirty-nine bales of cotton at defendant's gin house, which he supposed to be the crop of 1857; he thought they averaged four hundred and fifty pounds each; that cotton was worth that season eight cents per pound.

Plaintiff proved that defendant, on several different occasions in the month of June, 1857, and before that time, expressed himself well pleased with the plaintiff as an overseer--that his only objection to him was that he worked too hard. He proved also that the crop was planted previous to his employment; that the drought “set in” about the middle of June, and continued till about the 20th of July; that the crop was badly pitched, badly planted, and the ground ill prepared before planting, rendering cultivation more difficult; and, in the opinion of the witness, that defendant's crop was, under the circumstances, well cultivated; and that the crop was “laid by” when the plaintiff was discharged.

The defendant introduced testimony to prove that the corn and cotton was badly cultivated; that with a good season, had the land been well cultivated, he would have raised on the one hundred and twenty acres of corn, from ten to fourteen bushels per acre, and from the two hundred and twenty-five acres of cotton, perhaps seventy-five or one hundred bales. That, in the opinion of several witnesses, plaintiff was not a skillful overseer. The testimony of defendant's son tended to prove neglect in plaintiff's attention to defendant's business, and too familiar intercourse with the negroes under his charge. There was other evidence of a few instances of plaintiff's inebriety on certain occasions, and for short periods, but not of habitual drinking. The defendant proved substantially his account in offset.

The plaintiff proved that cotton was worth from eight to ten cents, and by the same witness that defendant made several hundred bushels of wheat, but did not know how much. That after he was discharged he moved into some old houses, and that the defendant denied owing him anything.

The court instructed the jury as follows: “The jury will decide, from the evidence, whether the plaintiff has proved the contract as alleged in the petition. If the contract has been proved, and it has been shown that the plaintiff was discharged before the expiration of the year without his fault, he would be entitled to recover for the services rendered by him before he was discharged, and such damages as he may have shown that he sustained by the wrongful acts of the defendant.

If you allow the plaintiff compensation, you will be governed by the loss and damages actually sustained, and not the contract price for the whole period, to be decided from the evidence.

But if you find from the evidence that the plaintiff was in fault, and that he was discharged on sufficient grounds, he would not be entitled to damage, but his compensation would be the value of his services during the time he was actually engaged before his discharge.

If you find for the plaintiff, render a verdict for the amount, after allowing the defendant such sum, if any, as he may appear from the evidence to be entitled to have.”

The defendant asked the court to give the following instructions:

“If the jury believe, from the evidence in the case, that the plaintiff was wrongfully discharged from the employment of the defendant as his overseer, then the measure of damages would be the actual value of the services of plaintiff during the time he was actually engaged in defendant's service, and such actual damages as the plaintiff may have sustained in consequence of being so wrongfully discharged from the employment of the defendant; and that it devolves upon plaintiff to show by proof that he was damaged by being wrongfully discharged, in what way he was damaged, and to what extent.

If...