Markham v. Markham

• Decision Date: 12 April 1892
• Citation: 14 S.E. 963,110 N.C. 356
• Parties: MARKHAM v. MARKHAM.
• Court: North Carolina Supreme Court

14 S.E. 963

110 N.C. 356

MARKHAM v. MARKHAM.

Supreme Court of North Carolina

April 12, 1892

Appeal from superior court, Durham county; WINSTON, Judge.

Action by M. G. Markham against J. W. Markham to recover certain wages. On trial, after appeal from a justice of the peace from a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

Plaintiff M. G. Markham, was examined as a witness in his behalf, and testified: "I was in the employ of the defendant from January 1, 1891, to June 2, 1891. The contract between us was that I was to work for him from January 1, 1891, to January 1, 1892, at the rate of $45 per month, or as I needed the money. Nothing was said about how I was to be paid. I was working by the year. I began work on January 1, 1891. Had been working for defendant as clerk for several years, and had been carrying the key. I quit on the night of June 2d. Did not return to work on the morning of June 3d. On the night of June 2d, at the time for closing the store defendant called me, and said he would have to ask me to give up the key. I handed him the key, and said I did not care to work for a man who let his wife rule him. I said this after defendant demanded the key. The defendant made no reply. This was all the conversation. I had been paid up to June 1st. The defendant tendered me the money for two days' work in June, at the rate of $45 per month. During the month of June I sought employment, and could not get any. I made $6 in that month." The defendant said he was sorry for the disturbance between plaintiff's wife and defendant's wife. Defendant and wife had been boarding at plaintiff. This was said on June 2d. This was all the evidence. Defendant demurred to the evidence upon the ground that it was insufficient to prove a discharge of plaintiff by defendant. (2) Because, as the contract of hiring was by the year, with no agreement as to how the plaintiff should be paid, and the year not having expired, the plaintiff could not recover; his action being premature. His honor overruled the demurrer. Defendant excepted, and assigned the same. The defendant then asked his honor to charge the jury that plaintiff could not recover upon his own evidence for the reasons stated above. His honor declined to give the instruction. Defendant excepted, and assigns the same as error. His honor charged the jury: "If the hiring was by the year, to be paid $45 a month, and the defendant dismissed plaintiff without legal excuse, the plaintiff will recover for June, 1891, less what he could and did make,--$6." Defendant excepted, and assigns such instruction as error. His honor charged the jury. "If the hiring was by the year, to be paid monthly, and the plaintiff left of his own accord, he cannot recover anything."

Where plaintiff, employed as clerk, for defendant for one year from January 1, 1891, testified that he was asked by defendant on June 2d thereafter to give up the key to defendant's store, and that plaintiff then handed the key over, and said he did not care to work for a man who let his wife rule him and that defendant made no reply, the question whether or not plaintiff was discharged was properly left to the jury.

Fuller & Fuller, for plaintiff.

James S. Manning, for defendant.

AVERY J.

If the agreement was that the plaintiff should sell goods as a clerk for a year, with a fixed compensation of $45 per month, the defendant could not discharge him during the year for insufficient reasons, and refuse to let him perform further service, without incurring liability for the loss sustained by the plaintiff by reason of such wrongful act. Chamblee v. Baker, 95 N.C. 102. It seems that this liability would be incurred where there is legal cause on the part of the employe for quitting the service, and abandoning the performance of the contract, whether the parties had agreed to pay a gross sum at the end of the year or in installments at the end of every month. Booth v. Ratcliffe, 107 N.C. 6, 12 S.E. Rep. 112; Chamblee v. Baker, supra. In the absence of such an agreement between the parties as definitely determines the price fixed by them upon the services rendered, the employe may sue immediately upon his wrongful discharge, and recover for the portion of the work actually performed before that time, as upon a quantum meruit. Bish. Cont. § 838; 2 Pars. Cont. pp. 522, 523, 658 659, and note i; Booth v. Ratcliffe, supra; Kendall ank-Note Co. v. Commissioners, 79 Va. 563; Lunatic Asylum v. Flanagan, 80 Va. 116. But in our case the plaintiff was paid up to the 1st day of June, and claims that he was discharged from defendant's service without legal cause on the night of June 2d. He sued before the end of the year to recover his wages at the contract price of $45 per month. He might have waited till the end of the year, and brought his action then for his wages at the same rate for seven months; but the defendant could have shown in diminution of damages that the plaintiff, on the 1st day of July, and thereafter to the end of the year, engaged in other lucrative employment, for which he was paid as much compensation as he would have been entitled to receive under the contract sued on, and this would have prevented recovery for any portion of the year except the month of June, because payment for that month would have placed him in the same condition as if the defendant had accepted and paid for his services for the entire year at the stipulated price. Hendrickson v. Anderson, 5 Jones, (N. C.) 246. But, if the defendant wrongfully violated "his part of the contract," there can be no question about the right of the plaintiff to have brought the action immediately upon the breach,--on the 3d day of June,--for the work he had actually performed, subject to be diminished by the amount already received, though he had been paid up to two days before. Brinkley v. Swicegood, 65 N.C. 626. The plaintiff did not proceed or rely upon either of the theories mentioned. We assume, as it is legitimate for us to do, that he was employed in some other business about the 1st of July that promised to yield as much remuneration as the defendant had contracted to pay for the residue of the year. If such was the case the plaintiff would have been put "in the same condition" as if the defendant had complied with the contract between them on receiving from the latter $45, less $6,--the amount actually earned after his discharge during the month of June. "The injured party, according to the dictates of reason," said the court in Hendrickson v. Anderson, "ought to be put in the same condition as if the contract had been fully performed on both sides." This equitable principle is the test to be applied. The plaintiff claimed exactly what the law declared him entitled to receive,--wages at the stipulated rate for the time when he failed to receive, either from the defendant or any other person, as much as $45 per month. The court told the jury that if wrongfully discharged, he was entitled to recover the stipulated monthly price less the sum shown to have been actually earned by him, viz., six dollars. The suit was brought before a justice of the peace on the 6th of July. The plaintiff might have brought it at the same date in the superior court, claiming a much larger sum, and suffering it to be diminished by proof of the amount already paid, or he might have waited till after the 31st of December, and brought the action for wages for the whole year, and had his claim for damages diminished by deducting both the payments by defendant and the amount of...