Ingram-Day Lumber Co. v. Rodgers

• Decision Date: 09 June 1913
• Docket Number: 15,955
• Citation: 105 Miss. 244,62 So. 230
• Court: Mississippi Supreme Court
• Parties: INGRAM-DAY LUMBER COMPANY v. W. E. RODGERS

62 So. 230

105 Miss. 244

INGRAM-DAY LUMBER COMPANY v. W. E. RODGERS

No. 15,955

Supreme Court of Mississippi

June 9, 1913

APPEAL from the circuit court of Harrison county, HON. GEO. S DODDS, Special Judge.

Suit by W. E. Rodgers against the Ingram-Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Geo. P Money and Flowers, Alexander & Whitfield, for appellant.

There is one question in the case which in our judgment is sufficient for the purposes of this appeal. This question was saved at the trial in every manner that this court requires of an appellant. It is saved in the examination of witnesses and in the motion to exclude the evidence when the plaintiff rested and in the requests for instructions at the conclusion.

This one question which by us is deemed sufficient and controlling is that there is no showing made by this record of any enforceable contract or of any contract for the breach of which damages could be recovered. The contract is not sufficiently certain in its terms. It cannot be ascertained what job Rodgers was to receive nor what he was to be paid. The alleged contract is lacking in some of its material terms. In fact it omits the most important term necessary.

It needs no authority to support the primary proposition that contracts must be sufficiently certain in their terms to enable the courts to determine precisely what the parties intended. Here the agreement upon which Rodgers sues is testified to by himself and his wife and son. They say it was that he should be paid six months' wages at two dollars and fifty cents per day and be given employment for life, or as long as the company should remain in business, at some job which he was able to fill. It is left in uncertainty what job he was to have and what compensation he was to receive.

In Jackson v. I. C. Railroad Company, 76 Miss. 607, our court reversed the judgment of the circuit court of Hinds county because a peremptory instruction in favor of the railroad company had been given. Jackson was claiming that a settlement had been made with him by which he was to receive a job for life in consideration of his releasing his claim for damages on account of certain injuries which he had suffered while in the railroad company's employ. But in that case it appears from the opinion of the court that Jackson testified that he was to be given a certain job, the very place he was to fill being designated. He was actually put to work in the position, which he claims was to be given him under his contract, and had collected the wages for several years. The contract in that case depended upon by plaintiff was sufficiently certain in the judgment of this court and it appears that it was sufficient in the view of many authorities on the subject. But it had in it the one most material element which is absent from this in the case at bar. There it was agreed, so Jackson said, that he was to have one particular job. He was given the job. He filed it for several years. He claimed that he was discharged without cause and he sued for breach of the contract.

It is possible that such contract may be made sufficiently certain either by fixing the position which the party is to hold or by fixing the amount which he is to receive as compensation. If in some manner the work he is to do is described and the compensation he is to receive is fixed certainty might be worked out of it.

In the case of Pennsylvania Company v. Dolan (Ind.), 51 Am St. Rep. 289, it appeared that the railroad company in consideration of the release of a claim for damages agreed to give Dolan employment and pay him the same compensation he was receiving at the time he got hurt. He was given employment of the kind he could do and it paid the wages claimed to have been agreed upon in the said contract and he was afterwards discharged. It was held by the court that the contract was sufficiently certain and was enforceable.

In the East Line & Red River Railroad Company v. Scott (Tex.), 13 Am. St. Rep. 758, it appeared that Scott had been injured on the railroad and had filed suit against the company to recover damages for his injuries and the suit was compromised. Part of the consideration of the compromise was a promise on the part of the railroad company to give him employment as locomotive engineer as long as Scott should desire to retain such employment. The money agreed to be paid him in case, four thousand, five hundred dollars, was paid and then Scott presented himself for work. The company refused to employ him and he sued for a breach of contract. In stating the case the court said that the agreement was that the company would employ Scott as a locomotive engineer and that for his services as such engineer he should be paid the compensation usual in such employment. In his declaration the plaintiff stated what the employment was to be and what his compensation was to be, to wit: One hundred dollars to one hundred and fifty dollars per month. The court said that Scott could have fixed the term of his services by giving expression to his desire as to the time he wished to serve at the time he presented himself. And the court further found that the contract was sufficiently definite in describing the work which Scott was to do and the compensation which he was to receive. The contract deal in that case contained the elements which we are insisting are omitted from the alleged contract in the case now before us.

In Carnig v. Carr (Mass.), 57 Am. St. Rep. 488, 35 L. R. A 512, the court had before it a contract which the plaintiff claimed had been made with him to give him permanent employment provided he would give up the business which he was in, it being that of an enameler. It was held to be a good contract. The court said that the words "permanent employment" were not too indefinite. But in that case the very work which the plaintiff was to do was agreed upon as was also the wages which he was to receive. The elements which we find to be lacking in the contract now before the court were present in that one.

In Louisville & Nashville Railroad Company v. Offutt (Ky.), 59 Am. St. Rep. 467, the court dealt with a contract which did not name the time for which the employment was to continue but only that Offutt "should be restored to the position, and that he should be kept so long as he did faithful work for the company." The court found upon an examination of the evidence as to the contract that the work which Offutt was to do was specified and the company was to pay him ninety-five dollars per month. It appears that in the original complaint the position which he was to fill, that of freight conductor, was described but the compensation was not named. The petition was amended by inserting allegations to the effect that he was to receive ninety-five dollars per month. In this case we see that the very material averments not contained in the declaration in the case at bar appeared in the complaint and that when the court said the contract might be enforced the position was taken upon a contract not subject to the objections which we are here making to this one.

Sax v. D. G. H. & M. Ry. Company (Mich.), 84 Am. St. Rep. 572, is another in which an employee sued for damages for breach of an alleged contract to give him employment for life. The court found upon examination of the evidence that there was a sufficient showing of a contract by which Sax was to be given employment for life in the position of brakeman on a passenger train. This was the position which Sax had held before he got his hand injured and the agreement was, so he said, that the railroad company should re-employ him and continue him in its service for life.

Yellow Poplar Lumber Company v. Rule, 106 Ky. 455, 50 S.W. 685. Here was a contract to give Rule employment at two dollars and fifty cents per day as long as the said lumber company was in the sawmill business on the Ohio river. The contract had in it the term omitted from that declared on in the case at bar. The consideration supporting the agreement to give Rule this job was his release of a claim for damages for the loss of his thumb while working in the said company's plant.

Smith v. St. Paul & D. R. R. Co., 60 Minn. 330, 62 N.W. 392. Here the defendant had agreed in consideration of Smith's release of his claim for damages on account of an injury to give him his position as engineer as long as he was able to do the work. The job was named and this carried with it the compensation. The court relied upon Pennsylvania Co. v. Dolan, supra.

Stearns v. Lake Shore Michigan Southern Ry. Co., 112 Mich. 651, 71 N.W. 148. Stearns was injured and in consideration of his release of his claim for damages he was paid one hundred and seventy-five dollars and was to be given the position of train baggage master on the train running between Jackson and Advion at a salary of forty-seven dollars and fifty cents per month during his natural life or his ability to do the work. The contract was specific both as to the job and the pay he was to get.

In Brighton v. Lake Shore, etc., Ry. Co., 103 Mich. 420, the contract was to give Brighton a position for life in a position paying forty-three dollars and seventy-five cents per month or a better place.

The contract involved in McMullan v. Dickinson, 63 Minn. 405, 65 N.W. 661, was to the effect that McMullan should be employed as assistant manager at a salary of fifteen hundred dollars per annum.

Hobbs v. Brush Electric Light Co., 75 Mich. 550, 42 N.W. 965, was a suit for personal injuries. The defendant pleaded a release and it was shown by the plaintiff that part of the consideration for the release was an agreement by the company to give him...