Morris Min. & Mfg. Co. v. Knox

• Decision Date: 23 May 1892
• Citation: 11 So. 207,96 Ala. 320
• Parties: MORRIS MIN. & MANUF'G CO. v. KNOX.
• Court: Alabama Supreme Court

11 So. 207

96 Ala. 320

MORRIS MIN. & MANUF'G CO. v. KNOX.

Supreme Court of Alabama

May 23, 1892

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action on a contract by William A. Knox against the Morris Mining &amp Manufacturing Company. Plaintiff had judgment, and defendant appeals. Affirmed.

R H. Pearson, for appellant.

N B. Feagin, for appellee.

McCLELLAN J.

The only counts of the complaint which the evidence tended in any degree to support, or to which the judgment rendered can be referred, are those which proceeded on the theory that the defendant employed plaintiff for one year from March 11 1889, at a salary of $1,500; that, after serving four months, he was wrongfully discharged, and not permitted to further perform the contract; and that for the remainder of the stipulated period he was ready and willing to discharge his undertaking; and which, upon this predicate, seek to recover the full amount of the salary agreed upon. Under these circumstances the trial having been without a jury, we shall not consider the other counts, or any question decided in respect of them, since no injury could have resulted to the defendant in that connection. Acts 1888-89, pp. 797, 800, § 7; Railroad Co. v. Trammell, 93 Ala. 350, 9 South. Rep. 870.

The action of the trial court in sustaining demurrers to defendant's 3d, 4th, 6th, and 7th pleas was excepted to. These exceptions are sought to be sustained here only on the grounds that these pleas were each "good as denying plaintiff's cause of action and in setting up a defense that plaintiff neglected his duty, and appellant had good cause for discharging him." Each of these defenses was available, and in fact availed of, under the general issue, which was also pleaded; and hence, whether the court's action was abstractly correct or not, it involved no injury to the defendant, and cannot be looked to to operate a reversal of the judgment. Railroad Co. v. Trammell, supra, and authorities there cited. It was, of course, open to the defendant to show, as justifying the dismissal of Knox, that his conduct of the business had been such as to drive away customers, but this, no more than any other fact, could not be proved by the declarations of persons who had ceased to trade at defendant's stores that their action in that matter was the result of plaintiff's misconduct. This was mere hearsay, and properly excluded on that account. It is insisted that there was a fatal variance between the complaint and proof, in that it was alleged that plaintiff had at all times during the contract period been ready and willing to perform the services required by the contract; and the evidence showed, it is contended, that soon after his dismissal he engaged to serve another for a period of one year, and continued in that service for the remainder of the term covered by the contract with the defendant. The case of Wilkinson v. Black, 80 Ala. 329, is, to our minds, decisive of this point adversely to the appellant. It is there, in effect, held that, while a wrongfully discharged employe, suing on the contract for the full compensation for the term therein stipulated, must aver readiness and willingness to perform throughout the time he undertook to serve, he is yet under no obligation to prove this averment, but may recover even though it be shown that he had entered into another contract for services the...