Keedy v. Long

Decision Date15 November 1889
PartiesKEEDY v. LONG.
CourtMaryland Court of Appeals

Appeal from circuit court, Allegany county.

Argued before ALVEY, C.J., and BRYAN, MILLER, IRVING, and MCSHERRY JJ.

H H. Keedy, J. C. Lane, and B. A. Richmond, for appellant.

H Kyd Douglas, C. A. Little, and A. Hunter Boyd for appellee.


In September, 1887, the appellant, the principal and proprietor of the Hagerstown Female Seminary, employed the appellee to teach music in his school. The contract is evidenced by the following correspondence between the parties, viz.: First, a letter from Mr. Keedy to Miss Long, in which he says: "I desire to engage a teacher of vocal and instrumental music. Salary is from 3 to 400 dollars, and home, according to the efficiency and ability of the teacher." Second. Miss Long's reply, wherein she stated "that she was a competent teacher of music, both instrumental and vocal," and that she was willing to be employed in the defendant's seminary. Then a letter from Mr. Keedy: "After due reflection, I have concluded to offer you the position of teacher of instrumental and vocal music. * * * If you accept, expect you to teach six hours each day, for five days. * * * I will give you 350 dollars, and home,--boarding, washing, room, &c. * * * I will pay you weekly or monthly, as you may desire. It will be a permanent position for you; and if you give good satisfaction I will raise your salary to 400 dollars for a scholastic year." Next, Miss Long's response: "I shall be pleased to accept of your offer, with the prospect of an advanced salary. I prefer my salary by monthly payments." And finally this letter from Mr. Keedy: "You can have your salary monthly, as you desire. Our school begins the 8th of September. You will please come on that day." The appellee entered upon the performance of her duties under this contract on or about the 6th day of September, and on the 28th of the following month she was discharged by the appellant. A few days thereafter she brought suit against him, before a justice of the peace, to recover the value of her services for 20 days; her salary for one month, up to October 8th, having been paid prior to her discharge. She recovered a judgment in that action, which the appellant paid. Some months later she sued the appellant in the circuit court for Washington county for a breach of the contract above set forth. The case was removed to Allegany county, and upon trial there resulted in a judgment against the appellant, who thereupon entered this appeal. To the declaration, which contained a single count, the appellant filed seven pleas. The fifth was subsequently withdrawn. The first averred that the defendant "is not indebted as alleged;" the second, that he "never promised as alleged;" the third, that the appellee was incompetent, and not qualified to teach, and that she had been discharged by the appellant for that reason; the fourth set forth, as another ground for her discharge, that she had injured the school by making the pupils dissatisfied; and the sixth and seventh relied on the judgment recovered before the magistrate as a bar to the present action. The third, sixth, and seventh pleas were demurred to. Issues were joined on the first and second, and on the replications to the fourth. The circuit court sustained the demurrer. During the trial two exceptions were reserved,--one to the admissibility of evidence, and the other to the rulings on the prayers.

Since the decision of the case of Horner v. Frazier, 65 Md. 1, 4 A. 133, it must be regarded as settled in this state that the plea "never promised as alleged," prescribed by the Code, is, in an action of assumpsit, the general issue plea. It has, therefore, in such actions the same scope and effect which the formal general issue plea possessed before the adoption, in 1834, by the English judges, of the rules regulating pleading. If the third, sixth, and seventh pleas amount to the general issue, the ruling of the circuit court on the demurrer was correct, because it is an elementary principle that pleas which merely amount to the general issue, though not such in form, are bad; and this court has held the defect to be one of substance, wich a general demurrer will reach. Miller v. Miller, 41 Md. 623. But, as observed by Lord Chief Justice DENMAN, in Hayselden v. Staff, 5 Adol. & E. 153, "there is a great distinction between the case of a plea which amounts to the general issue and a plea which discloses matter which may be given in evidence under the general issue." The general issue is a denial of the whole substance of the declaration, and puts upon the plaintiff the necessity of establishing all the essential allegations in the narr. But a plea which gives express or implied color to the plaintiff's statement, and admits that statement to be true, but makes defense by setting up new matter in avoidance, can never be said to amount to the general issue, for the obvious reason that the element of denial is absent. Hence, "where the defendant elects to plead specially defenses in confession and avoidance which would be admissible in evidence under the general issue, the fact that they are admissible under the general issue does not make his special plea bad." Poe, Pl. & Pr. 540; 1 Chit. Pl. 529; Steph. Pl. 363. These three pleas give color to the plaintiff's statement of her case. They admit, in effect, the making of the contract, and its subsequent breach by the defendant; but the third sets up a justification for the breach, and the two others set up a judgment in bar. In a word, they confess and avoid. They are therefore good pleas, if the justification set up be valid, and if the judgment relied on be in law a bar to this proceeding. There can be no difficulty in respect to the third plea. The appellee, in her first letter to the appellant, stated that "she was a competent teacher of music, both instrumental and vocal." If then, in fact, she proved to be incompetent to do the thing she was employed to do, and the thing she represented herself qualified to perform, the master had the undoubted right to dismiss her. Wood, Mast. & Serv. 166; Harmer v. Cornelius, 94 E. C. L. 236.

The questions presented by the demurrer to the sixth and seventh pleas are of more interest and importance, for they involve generally, an inquiry as to the remedies which a servant has against the master who wrongfully discharges him; and, specially, the effect which the suit brought by the appellee before the magistrate has upon her right to prosecute this action. The contract between these parties was clearly for a definite period, --a scholastic year,--and not one merely at will. The terms used in the letters quoted are sufficient to establish this, apart from any reference to the nature of the employment, and the character of the services agreed to be performed. Before the expiration of that period the appellee was discharged, and, let us assume in considering the subject, wrongfully discharged. What, then, were her remedies? It was formerly determined in England, and followed in some cases in this country, that in such a case the servant holding himself in readiness to perform his contract, and being able and willing to do so, was entitled to recover his wages for the whole term, upon the ground of constructive service. This doctrine had its origin in a decision by Lord ELLENBOROUGH, at nisi prius, in Gandell v. Pontigny, 4 Camp. 375, 1 Starkie, 198. It was followed in other cases, then doubted, again adopted, but finally repudiated altogether, in Elderton v. Emmens, 6 C. B. 160; Goodman v. Pocock, 15 Q. B. 576. "A servant wrongfully discharged," says Smith, in his work on Master & Servant, (59 Law Lib. 94,) "has, however, the two following remedies open to him at law, either of which he may pursue immediately on his discharge: First, he may treat the contract of hiring and service as continuing, and bring a special action against his master for breaking it by discharging him,--and this remedy he may pursue whether his wages are paid up to the period of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring and service as rescinded, and sue his master on a quantum meruit for the services he has actually rendered." These two alternative remedies are the only ones open to him. Mayne, Dam. 159. Upon a quantum meruit, he can only recover for the services actually rendered. Archard v. Hornor, 3 Car. & P. 349; Smith v. Hayward, 7 Adol. & E. 544. In an action for damages...

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