John J. Squire v. Wright

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 172
• Parties: JOHN J. SQUIRE, Respondent, v. JAMES C. WRIGHT et al., Appellants.
• Court: Missouri Court of Appeals

1 Mo.App. 172

JOHN J. SQUIRE, Respondent,

v.JAMES C. WRIGHT et al., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. In a suit to recover damages for the discharge of the plaintiff from an employment to which he was entitled under a contract, if the question of his qualifications for such employment becomes material, the defendant should be permitted to ask him, on cross-examination, whether he was competent for such employment.

2. The burden of proving incompetency of the plaintiff is on the defendant.

3. In such a case it is proper for the defendant to prove, in mitigation of damages, that he offered to give the plaintiff employment at the same compensation, in the same general line of business.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

Alex. J. P. Garesché, for appellants, cited: Thompson v. Wood, 1 Hilt. (N. Y.) 97; Goodman v. Pocock, 15 Q. B. 576; Smith's M. & S., 73 Law Lib., note g, p. 90, (95); Best on Ev., 64 Law Lib., p. 190 (293); Best on Ev., 64 Law Lib., p. 193 (299); Pond v. Wyman, 15 Mo. 183, 184; 2 Greenl. on Ev. (4th ed.), sec. 261; Ream v. Watkins, 27 Mo. 518; Springdale Association v. Smith, 32 Ill. 259.

P. E. Bland, for respondent, cited: Banister v. Henn, 45 Mo. 567; Shacklett v. North Missouri Coal and Mining Co., 50 Mo. 410.

GANTT, P. J., delivered the opinion of the court.

Squire sued Wright et al., to recover damages for the nonperformance of a contract to employ him for a year, at $6 per diem, in the capacity of foreman of a sash, door, and blind factory. He was discharged in October, 1868, a little more than three months after his term of service commenced. The answer set up that he was totally incompetent, and was, therefore, discharged as foreman, but told to take charge of any machinery and do any work in the factory for which he was competent, and that defendant would pay him the price he was to receive for services as foreman. Defendants say that he refused to accept any such employment, but absented himself from the factory altogether. They also pleaded a counter-claim of $300, for money borrowed; alleging that they had paid him all the money due up to October 17th, when he ceased to work, except $16.

The reply asserts that plaintiff was competent, and that he was not discharged for incompetence, but does not deny any other matter alleged in the answer.

The plaintiff was examined as a witness. He was asked, on cross-examination, many questions, of which we can only judge by the answers he gave, which are put down in what is called the narrative form. He said: “My work was, not merely to put machinery into operation, but to prepare knives, cutters, etc., have them properly arranged, placing them, receiving orders, seeing that the workmen properly filled them, laying out work, seeing to its prompt execution; no part of my business to make estimates for work, but have done so from the list of prices, which refers only to ordinary work. Don't know that I could have estimated for ordinary work to satisfaction of my employers, but would to my own.” The question was asked: “Were you competent for such work?” The plaintiff objected to this question; the court excluded it, and defendants excepted.

The court gave the following instructions at the request of plaintiff, defendants excepting:

1. “The plaintiff was not bound, under the said contract, to serve the defendants in any other capacity than that of foreman; and if the jury believe from the evidence that either of the defendants stated to the plaintiff that he was no longer foreman, and that they had concluded to dispense with his services as foreman, they are instructed that such statement or statements, substantially the same, constituted a discharge of the plaintiff, and the effect was not relieved or altered by the offer to him of any other position.”

2. “The law presumes that the plaintiff was competent, and possessed of the necessary skill and ability to perform the duties of said employment, and the burden of proof to the contrary is on the defendants.”

The defendants asked this instruction, and excepted to its refusal, viz.:

“If the jury believe from the evidence that defendants offered to give plaintiff employment in the same general line of business as that in which they engaged him under the terms and conditions of the contract read in evidence, and at the same compensation, and plaintiff refused to accept the same, the defendants are not liable in...