Marx v. Miller

• Decision Date: 28 June 1902
• Citation: 134 Ala. 347,32 So. 765
• Parties: MARX v. MILLER.
• Court: Alabama Supreme Court

32 So. 765

134 Ala. 347

MARX v. MILLER.

Supreme Court of Alabama

June 28, 1902

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by Martha E. Miller against Ferd. Marx. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint contained but one count, which was as follows "The plaintiff, Martha E. Miller, claims of the defendant, Ferd. Marx, $450, with interest thereon, as damages for the breach of an agreement entered into by the defendant on the 18th day of June, 1900, in substance as follows: Defendant employed plaintiff at a salary of $1,800 per year, to be paid weekly or monthly, at plaintiff's election, to take charge of the dressmaking department of the said defendant in his said business in Birmingham, Ala during the period beginning September 1, 1900, and ending September 1, 1901; and plaintiff avers that she entered in the performance of her said contract on, to wit, the 1st day of September, 1900, and continued to perform her services as said manager faithfully and efficiently, though often interfered with by defendant or his employés, until, to wit the 3d day of June, 1900, when, though plaintiff was ready able, willing, and offered to perform and continue her said service, she was prevented by the wrongful acts of defendant from performing her contract with the defendant, and, without fault on her part, was discharged by defendant from her further service for the defendant, and her workroom closed, and most of the employés therein discharged, and she was directed that her services were not further needed, and that her contract with the defendant was ended, though there was yet three months of the time for which said contract was to continue, to wit, June, July, and August, 1901, that she has been prevented from executing by the said wrongful acts of defendant in discharging her. And plaintiff avers that at this season of the year it is difficult, if not impossible, to obtain any like services for the unexpired term of her contract, to wit, June, July, and August of 1901, and she will thereby, on account of said wrongful discharge and breach of said contract by said defendant, Marx, be damaged to the amount of four hundred and fifty and no/100 dollars, and interest thereon; hence this suit." The defendant demurred to this complaint upon the following grounds: "(1) Because it is shown in and by the terms of the contract sued upon that the wages claimed are not due. (2) Because it is shown by the averments of the complaint that the suit is prematurely brought. (3) Because it is not averred in said complaint that plaintiff has been unable to obtain like employment for the unexpired term of her contract. (4) Because it is not shown by said complaint that plaintiff has held herself in readiness to perform her contract. (5) Because the plaintiff has failed to aver in her complaint readiness and willingness on her part to perform her contract throughout the time she undertook to serve." These demurrers were overruled. The defendant moved the court to strike from the complaint the last paragraph therein, commencing, "And plaintiff avers that at this season of the year," etc. The court overruled this motion, and the defendant duly excepted. The defendant pleaded the general issue, and by special plea set up that the plaintiff had refused to obey the reasonable orders of the plaintiff, her employer, in that she refused to work on garments in the dressmaking department, and that her disobedience in this respect justified the rescission of the contract of the defendant, and authorized plaintiff's discharge. The plaintiff demurred to the several pleas upon the ground that it is not averred that the work requested by the plaintiff was work which she was employed to do, and that said pleas set up no defense to the action. This demurrer was sustained. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion; it being unnecessary to set out in detail the rulings of the trial court upon the evidence, or the facts relating thereto. There were verdict and judgment for the plaintiff, assessing her damages at $466.50. The defendant moved for a new trial, which motion was overruled, and the defendant duly excepted.

Morris Loveman, for appellant.

Rudulph & Huddleston, for appellee.

TYSON J.

It is thoroughly settled in this state that when a person contracts to perform personal services for another for a specified term at stipulated wages, and is discharged, without fault on her part, before the expiration of the term, she may treat the contract as broken and at an end, and immediately sue and recover all the damages she may have sustained up to the time of the trial. But she is not compelled to accept the breach of her employer as a termination of the contract. She may elect to treat it as continuing, and keep herself in readiness to perform the contract on her part. Davis v Ayres, 9 Ala. 292; Martin v. Everett, 11 Ala. 375; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194; Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8; Holloway v. Talbot, 70 Ala. 389; Wilkinson v. Black, 80 Ala. 329; Mining Co. v. Knox, 96 Ala. 320, 11 So. 207. It will be noted that in the case under consideration the plaintiff counts alone on a breach of the contract, treating it as broken by defendant and at an end. The complaint contains only one count, and there is no recognition of the continuing existence of the contract,--no attempt to recover upon it as such, or for wages on account of constructive services rendered under it; but, as we have said, it is...