Lambert v. Jefferson

• Decision Date: 16 March 1948
• Docket Number: 5 Div. 239.
• Parties: LAMBERT v. JEFFERSON.
• Court: Alabama Court of Appeals

36 So.2d 583

34 Ala.App. 67

LAMBERT v. JEFFERSON.

5 Div. 239.

Alabama Court of Appeals

March 16, 1948

Rehearing Denied April 6, 1948.

Affirmed After Remandment Aug. 3, 1948. [Copyrighted Material Omitted]

Jacob A. Walker and R. C. Smith, both of Opelika, for appellant.

Denson & Denson and L. J. Tyner, all of Opelika, for appellee.

HARWOOD Judge.

The plaintiff in the court below, appellee here, filed his complaint consisting of one common count for work and labor done for the defendant, and claimed $852 due from the defendant therefor.

The defendant filed 4 pleas thereto. Plea 1 was the general issue; plea 2 set up payment; pleas 3 and 4 were of set-off and recoupment, respectively.

Plaintiff demurred to pleas 3 and 4, but before the demurrers were ruled on he filed additional pleas 5 and 6, again of set-off and recoupment, respectively.

The demurrers as filed and refiled were sustained.

Defendant thereupon filed plea 7, in recoupment. Demurrers to this plea were likewise sustained.

Defendant then filed pleas 8 through 23, said pleas being in set-off and recoupment.

Demurrers filed to these pleas were sustained as to plea 8, and overruled as to pleas 9-23.

Thereupon the case went to trial on the complaint and pleas 1, 2, and 9-23. Plea 18 was however withdrawn by the defendant during trial.

A jury returned a verdict in favor of the plaintiff in the amount of $400.

Only the court's rulings on the demurrers to pleas 6, 7, and 8 are assigned by the appellant, defendant, below, as error same being appellant's assignments of error numbers 13 14, and 15.

Plea 6 is in set-off, and is based on the alleged breach of the verbal contract of employment made between the plaintiff and defendant. Said alleged breach is stated in plea 6 in the following terms: 'that the plaintiff breached said contract of employment in that he did not perform the duties usual and proper in such employment, and did not conduct said business in a careful, skillful and diligent manner, but on the other hand neglected his duties and conducted said business in a careless, unskillful and dilatory manner, to the defendant's damage in the said sum of $2,127.28.'

A plea of set-off or recoupment should be as certain as to damages sought to be set-off, as if it were an original action brought by the defendant for that particular demand. Buford v. Graden, 5 Ala.App. 421, 59 So. 368; Dawson v. Haygood, 24 Ala.App. 481, 136 So. 876; Kilgore v. Arant, 25 Ala.App. 356, 146 So. 540; Greer v. Malone-Beall Co., 180 Ala. 602, 61 So. 285. This doctrine makes apparent the correctness of the action of the lower court's action. In addition no facts tending to show a breach were set forth. The allegations were merely the conclusions of the pleader. Worthington v. Davis, 208 Ala. 600, 94 So. 806.

Appellant's assignments 14 and 15 relate to the lower court's action in sustaining his demurrers to pleas 7 and 8. Both pleas are in recoupment, and are identical except that in plea 7 the appellant alleges that defendant 'expressly agreed, or it was necessarily implied from the terms and nature of the employment' that the appellee would perform certain duties in and about the business in a certain manner.

Plea 8 adopts plea 7, but strikes out the words of implication of the terms of the contract and inserts in lieu thereof the words 'and the plaintiff agreed,' etc.

In plea 7 the alleged breach or breaches of the contract of employment by the plaintiff are set forth in the following terms:

'1. He did not devote himself to said employment during the usual business hours but on at least two occasions absented himself from the business for at least half a day at a time and on numerous other occasions for shorter but appreciable periods of time. 2. He did not carefully, skillfully and diligently devote himself to said employment. He did not have an interest in said business and did not evidence any interest in said business, but on the other hand was indifferent to said business and evidenced his said indifference to the customers of the business. 3. He repeatedly made disparaging remarks about his employer, the defendant, to the other employees of the business. 4. He did not efficiently and competently look after the affairs of said business, but managed the said business inefficiently and incompetently. 5. He did not push the sales of said business but neglected them. 6. He did not dress the show windows of the business out of business hours, but neglected the customers during the business hours by dressing the show windows during such time. 7. He was not courteous to customers. 8. He favored later customers over earlier ones by letting them have incoming scarce merchandise and did not deliver such scarce merchandise in substantially the order in which the purchases had been made. 9. The plaintiff did not exercise care, skill and judgment in the purchase of merchandise, but over bought cheap and unguaranteed merchandise. 10. The plaintiff did not carry out instructions of the defendant, the owner, in the conduct of said business, in that the defendant instructed the plaintiff to guarantee to customers all merchandise sold and to make good to the customers all merchandise found defective, and the plaintiff neglected or failed so to do.'

Before reciting the alleged breaches the defendant had in plea 7 set forth alleged corresponding stipulations in employment contract which were covered by the above alleged breaches.

Where a contract contains several stipulations, the pleader may in each count assign as many breaches as he pleases; but each breach must be upon a distinct stipulation in the contract. On the other hand he cannot assign two breaches in the same count, of one and the same stipulation, without bringing about an objectionable duplicity in the count. Worthington v. Davis, supra. Such was the result here. The court therefore committed no error in sustaining the demurrers to pleas 7 and 8.

The defendant below in 1946 was engaged in electrical appliance and automobile accessory business in Auburn, under the name of City Appliance Company.

The evidence introduced by the plaintiff tended to show that he entered into a verbal contract with the defendant on 3 January 1946 by which he was employed as sales manager for defendant's appliance company. The plaintiff under the contract was to perform his duties under the supervision of the defendant, who was to do all the buying. According to the plaintiff's evidence he was to receive a salary of $35 per week, to be increased to $50 per week as merchandise became more procurable, and in addition he was to receive a commission equal to ten per cent of the over all or gross sales.

Plaintiff entered into his employment under the terms of the above contract, but on 15 June 1946, the defendant requested his resignation. Upon this request the plaintiff demanded the commissions he alleged to be due him and at that time the defendant figured up such amount and said it amounted to $852.00, which the plaintiff agreed to accept.

The defendant asked plaintiff to return on 17 June 1946 to receive such payment. Plaintiff returned on 17 or 18 June, and at that meeting the defendant tendered him a check for $150, with the remark he could 'take it or leave it.'

Plaintiff testified that when defendant presented him this check he had written thereon 'For Expenses,' for income tax purposes.

Upon presenting this check to the drawee bank the plaintiff was informed that payment thereon had been stopped by the defendant.

Plaintiff further testified that he has received no part of the commissions alleged by him to have been agreed on, or any part of the amount of the $150 check.

For the defense the defendant testified he had agreed to pay the plaintiff a salary of $35 per week, to be raised to $50 per week when merchandise became more plentiful, and a commission of ten per cent of the net profit of the business, to be paid at the end of the year when an inventory was to be taken and the books audited, and it could be determined if a profit had been made.

The defendant further testified that at the time he had given the plaintiff the $150 check he had gone over the deposits and gross sales of the business with plaintiff to show him that there were no profits, but that such records showed a loss of roughly $800. He did at this time give the plaintiff the $150 check 'just to make him happy.' Payment on this check was stopped because of a personal difficulty between the two later in the afternoon.

The defendant further testified that this $150 check was an outright gift by him to the plaintiff, and that it was at the plaintiff's request that he wrote the notation 'trav. expenses 3 months' thereon.

The defendant gave further testimony, as did other defense witnesses, tending to establish the pleas filed by the defendant.

Appellant's assignment of error No. 1 asserts that the trial court erred in excluding from the evidence and consideration of the jury the testimony of the witness Hugh D. Whatley, to which ruling the defendant had duly excepted.

Mr. Whatley testified as a public accountant whose qualifications were admitted.

Over the strenuous and repeated objections of the plaintiff Mr. Whatley was permitted to testify as to the loss sustained by the business during plaintiff's employment. To arrive at the loss it was necessary that Mr. Whatley make what he termed an 'estimated inventory' as of 2 January 1946, the date of the beginning of plaintiff's employment to compare with the inventory of 15 June 1946, the date of the termination of plaintiff's employment.

As to how he arrived at this 'estimated inventory' Mr. Whatley testified as follows:

'A. I took the sale of the business from the beginning of...