Meade v. Rutledge

• Decision Date: 01 January 1853
• Citation: 11 Tex. 44
• Court: Texas Supreme Court
• Parties: D. & R. MEADE v. RUTLEDGE.

11 Tex. 44

D. & R. MEADE

v.RUTLEDGE.

Supreme Court of Texas.

1853.

Where the petition alleged a written contract of hire for a year, but did not allege when the service was to commence, and the writing itself did not specify the time, it was held that proof (parol) was properly admitted, as to the time of the commencement of the service; but the petition alleged part performance of the service and a readiness to perform the balance, when the plaintiff was discharged by the defendants on a certain day, and not permitted by them to render further service.

Where the Court below permitted the plaintiff's counsel, after the close of the testimony, to suggest the death of the plaintiff, and have his administrator made a party, the Supreme Court said, the object of the law was attained by having a party, at the verdict and judgment. It would have been idle, after the party was formally made, to have caused the evidence to be again repeated to the jury.

Where the plaintiff declared on a contract of hiring, as overseer, for a year, and the defendant pleaded a general denial, payment and settlement, the Court said, It does not appear from the record that any question was made below, relative to the term of service. It had been averred by the plaintiff, and not specifically denied by the defendants, to be for a year--and upon this point no instruction was sought from the Court. Probably both parties regarded it as a yearly contract: and this, although the terms are indefinite, was not, in relation to this class of contracts, an unreasonable construction. Overseers are generally employed by the year, and there is nothing in the terms of this contract, which required it to be constituted an exception to the general usage.

A tender of performance of a condition precedent in a contract, and a refusal to accept, will sustain an action on the contract; but the recovery will be restricted to the amount of damage actually sustained, except where the condition precedent can be performed at once, by a single act. The services of an overseer or mechanic (in the case supposed in the opinion) are not such as can be performed by a single act; the delivery of a carriage or horse to one who has contracted to purchase it, can be performed by a single act. In the latter case, the party refusing can sue and recover the property, but not so in case of disagreements between employers and overseers or mechanics. (Note 12.)

Contracts for overseers' wages are not, it is believed, now at least, generally considered as entire, or incapable of apportionment. (But see next to the last paragraph of the opinion.)

Where an overseer sued on a contract of hire for a year, at a certain amount per annum, payable monthly, and board and provisions for himself and wife during the time, alleging that, on a certain day after the commencement of the service, his employers discharged him, and proved the costs of boarding and providing a man and wife in that neighborhood, the Court said there was no damage proved. The salary had been paid, and provisions, etc., furnished to date of discharge.

Appeal from Bexar. Thomas P. Rutledge, the deceased testator, was employed by the Messrs. Meade in the capacity of an overseer, in the fall of 1847, and was by them discharged on the first of January, 1848. In July, 1848, he instituted this suit, alleging the contract to be for one year, and that he was to be paid the sum of six hundred dollars, and to be furnished board and provisions for himself and wife during the term of the said year; that he had rented his own farm, and left his cattle and other stock in the hands of other persons, and had removed with his wife to the plantation of the said Meades, and had entered faithfully upon the discharge of the duties required of him; that he was discharged on the first of January, and was not permitted by the appellants to render further services, though always ready and willing to perform them according to the terms of the contract; that the appellants had refused to pay the six hundred dollars and furnish the said board and provisions; and he prayed for judgment and that damages be awarded against them.

The defendants answered by a general denial, plea of payment and settlement. The defendants, in reply to an interrogatory, admitted the fact of discharge, and averred faithful performance of their obligations to Rutledge, and that they had fully paid him all demands against them, viz.: on the first day of January, 1848.

A copy of the agreement was filed. There was no direct specification that the services were to be for one year. It was agreed that the salary should be at the rate of six hundred dollars per annum, payable monthly in silver.

At the close of the testimony, the executor of the deceased Rutledge was, on the suggestion of counsel, made a party, to which the defendants excepted.

The evidence was to the effect (the discharge of plaintiff was acknowledged by defendants' answer) that Rutledge was seen, by one of the witnesses, in San Antonio about September, 1847, but was not seen doing anything; that, to have boarded and furnished a house in San Antonio, for man and wife, for one year, was worth five hundred dollars, and would not have been much less on a farm. Another witness testified that Mr. Rutledge lived upon a farm on the Guadalupe River, and owned some cattle; that he rented the same, four or five years since, for one year, and moved away; that he was a good practical farmer, and of fine business habits and qualifications, etc. Mr. Lewis testified that on the first of January, 1848, Rutledge presented him an order, drawn by the Meades on the witness, in favor of Rutledge, for $110 “balance due the said Rutledge on settlement,” which he paid on the following day, when Mr. Rutledge remarked that he had quit the Messrs. Meades, because they would not let him flog the negroes, or words to that effect.

The jury found for the plaintiff seven hundred and thirty-four dollars damages.

Motion for new trial was overruled, and cause was brought up by appeal.

The errors assigned were:

1st. Overruling the motion for a new trial.

2d. In admitting testimony as to the time the contract went into operation.

3d. In permitting the executor of Rutledge to be made a party, after the testimony had closed.

4th. Because the verdict and judgment are contrary to law and the evidence in the case.

S. G. Newton, for appellants. I. The petition avers the contract, service, and breach upon the first of January, 1848, but does not allege the time the contract went into effect. It was error, therefore, to admit proof of the time. (Mims v. Mitchell, 1 Tex. R., 443; 2 Cowp., 682; Harrison v. Nixon, 9 Peters, 503; Caldwell v. Haley, 4 Tex. R., 317; Hall & Jones v. Jackson, Id., 305; Young v. Lewis, 9 Id., 73.)

II. The second exception taken on the trial, was to permitting the administrator of defendant to be made a party to the suit, upon suggestion, after the testimony had been closed. We do not conceive the statute to mean anything more than to provide a way by which a deceased party may be represented (Hart. Dig., 697), and does not mean that any proceedings whatever can be had until the deceased is represented. Does not the deciding of motions and exceptions during the trial, affect, for good or evil, the interests of the parties? If so, who is to be bound unless there is some person to represent the interests of the deceased party.

III. The verdict was contrary to law and evidence. The gravamen of this action is damages. They are alleged generally, without stating when or how they occurred. The damage complained of, is, not that he was forbid to render service, but that defendants had not paid the salary claimed; nor furnished the board and provisions, to the damage two thousand dollars.

Now, to obtain judgment, plaintiff must prove the contract as alleged, and that he was discharged without cause, and that the wages, board, and provisions claimed were due at the bringing of the suit. Does the proof sustain the allegations of the petition? We think not. The contract filed and admitted is not such a one as described; it is not a contract in regard to time but simply in regard to service and pay; and the rule that a written contract must be taken for what it expresses upon its face, without adding to or diminishing therefrom, is too well established to require demonstration at this time. It says nothing as to when the service should commence, nor when it should cease; indeed, it is without any date whatever. And if it had been the intention of parties that it should define this part of the contract, surely the parties would have had a clause inserted to that effect. They not having done so, the Court will presume it embraced all that was intended, and will not add thereto by presumption or proof. It will not come under the rule established by this Court, that in case of doubt or uncertainty they will hear parol testimony to explain; because the contract is perfect in all that it purported to fix; and could it by possibility have done so, it would require averments in the original or an amended petition, to the effect that the contract required explanation. Plaintiff not having done so, has relied upon the contract as it is, and must be bound by his pleadings.

Then, if the evidence does not support the allegations, the plaintiff cannot recover, even if it would support a verdict under a different state of pleadings.

The next point in the proof of the plaintiff that is wanting, and it is also lacking in the averments of the petition, is, that plaintiff was discharged without cause. That a contract may be dissolved by either party when the other fails to perform his portion of its requirements, will no doubt be admitted, and the presumption that the party dissolving it had the right to do so, always exists in absence of averments and proofs to the contrary.

The third requirement of the proof under the pleadings, is that...