Lopes v. Connolly

• Decision Date: 04 January 1912
• Citation: 97 N.E. 80,210 Mass. 487
• Parties: LOPES v. CONNOLLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 487

97 N.E. 80

LOPES v. CONNOLLY.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1912

COUNSEL

Geo P. Beckford, for plaintiff.

J. H W. E. & R. L. Sisk, for defendant.

OPINION

BRALEY J.

The jury might have been convinced if no evidence except his own had been introduced, that there had been an innocent mistake of identity when the defendant, who held as security an assignment of the wages of his debtor, whose name corresponded exactly with the name of the plaintiff, notified the plaintiff's employer, that thereafter no wages were to be paid to the assignor until the amount remaining due had been satisfied.Rev. Laws, c. 189, §§ 27, 32, 33, 34;St 1906, c. 390.But concededly the plaintiff was not the defendant's debtor, and if the jury believed his testimony as their verdict fully indicates, the defendant upon being informed of this mistake instead of rectifying the error insisted upon his right to retain the money, and refused to withdraw the notice.If the defendant had attempted to collect the debt by garnishment under Rev. Laws, c. 189, this refusal would have been abundant proof of an abuse of legal process.White v. Apsley Rubber Co.,194 Mass. 97, 80 N.E. 500, 8 L. R. A. (N. S.) 484;Paine v. Kelley,197 Mass. 22, 83 N.E. 8.The result accomplished by the notice being indistinguishable, the defendant who acted at his peril, is answerable in damages which are measured by the natural and probable consequences resulting from the attempt to enforce a groundless claim.Burt v. Boston Advertiser Co.,154 Mass. 238, 245, 28 N.E. 1, 13 L. R. A. 97;Markham v. Russell,12 Allen, 573, 90 Am. Dec. 169.

It is certain that the plaintiff was deprived of his wages as they accrued weekly, and he also could show, and on his evidence of the statements of the foreman at the time of dismissal, and which for this purpose were relevant, the jury could find that loss of his regular employment also followed.Zinn v. Rice,161 Mass. 571, 574, 37 N.E. 747;Costello v. Crowell,133 Mass. 352.The plaintiff's further evidence, that after his discharge, although using due diligence, he had been unable to obtain regular work, and was left without his accustomed means of subsistence, as well as the statement of his precarious earnings from other sources of employment were admissible.If the contract had been for a stated term at a fixed compensation, the measure of damages upon a breach by his employer ordinarily would have been the difference between what he would have received, and what in fact he had earned, or by proper exertion might have earned in the same or some other occupation during the unexpired time.Cutter v. Gillette,163 Mass. 95, 39 N.E. 1010;Bussell Trimmer Co. v. Coburn,188 Mass. 254, 74 N.E. 334, 69 L. R. A. 821.

The plaintiff's employment was terminable at the will of either party, but this condition does not relieve the defendant whose wrongful act and not the will of the employer, caused the plaintiff to lose a position, in which the jury could find that so long as his work proved satisfactory his employment would have continued, subject, of course, to any uncertainties of the business, and of his ability to labor.The defendant having procured his discharge and forced him to enter a field of competition where opportunities for obtaining work under similar conditions of good will with a reasonable prospect of continuity of service, or indeed remunerative work of any kind appear to have been exceedingly limited, and if employment was obtained its continuance was transitory, was liable in damages for the fair value of the plaintiff's contract of service including any loss of time attributable to these tortious acts.Hill v. Winsor,118 Mass. 251, 259;Smethurst v. Barton Square Baptist Church,148 Mass. 261, 265, 19 N.E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550;Pye v. Faxon,156 Mass. 471, 475, 31 N.E. 640;Stynes v. Boston Elevated Railway,206 Mass. 75, 91 N.E. 998, 30 L. R. A. (N. S.) 737;Richards v. Johnston,46 Mich. 297, 9 N.W. 423.

The instructions were sufficiently favorable to the defendant, and the period of examination permitted by the presiding judge in his discretion does not appear to have been so unreasonably extended, that his decision should be revised.Reynolds v. Ocean Ins. Co.,22 Pick. 191, 33 Am. Dec. 727;Spoor v. Spooner,12 Metc. 281, 285;Lane v. Moore,151 Mass. 87, 91, 23 N.E. 828, 21 Am. St. Rep. 430.

The defendant's persistent and willful interference also subjected the plaintiff to the injustice and discouragement of having his earnings withheld, and to the perplexity of decision as to what course he must take not only to vindicate...