Norris v. Cargill

• Court: Wisconsin Supreme Court
• Writing for the Court: LYON
• Citation: Norris v. Cargill, 57 Wis. 251, 15 N.W. 148 (Wis. 1883)
• Decision Date: 13 March 1883
• Parties: NORRIS v. CARGILL AND OTHERS.

57 Wis. 251

15 N.W. 148

NORRIS

v.CARGILL AND OTHERS.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Brown county.

The plaintiff entered the employment of the defendants (who were partners) as their book-keeper May 17, 1880, and was by them discharged from such employment June 29, 1880. The agreed consideration for such services was $75 per month, and the plaintiff was paid at that rate to the date of his discharge. He claims that the defendants employed him to serve until January 1, 1881, and that they discharged him wrongfully and without any just cause. This action is to recover damages for the alleged breach of such contract of employment. It is stated in the complaint that between the date of his discharge and January 1, 1881, the plaintiff was only able to earn $163. Judgment is demanded for $287, that being the contract price for six months, less the $163. The original answer admitted that the defendants employed the plaintiff as their book-keeper and accountant “for the period named in the complaint and at the rate per month therein alleged,” and it is charged therein that “he was inaccurate, careless, neglectful, and unfaithful to his assumed and promised duties as such book-keeper and accountant, and was and is wholly incompetent to discharge the duties of a competent book-keeper and accountant,” for which reasons the defendants discharged him.

The answer was afterwards amended by inserting therein, immediately after the words first above quoted, the following: “On the express agreement and understanding then and there made, by and between the said plaintiff and these defendants, that such employment might be terminated at the pleasure of said defendants, if they were not satisfied with the conduct or skill or work performed by said plaintiff; or, in other words, that the said employment was to be to the satisfaction of the said defendants, and not otherwise.”

There was a jury trial, which resulted in a verdict and judgment for the plaintiff for the amount of his claim. A motion for a new trial was made before judgment and denied. The errors assigned all relate to the proceedings on the trial, and such proceedings are stated in the opinion. The defendants appeal from the judgment.Hastings & Greene, for respondent, John M. Norris.

Hudd & Wigman, for appellants, W. W. Cargill and others.

LYON, J.

1. At the close of plaintiff's testimony the defendants moved for a nonsuit on the ground that the evidence failed to show or tend to show a hiring for any specific time. The motion was denied. Before the motion was made, the plaintiff had testified to a conversation with one of the defendants when the contract of hiring was made. On his cross-examination he thus detailed that conversation: “I asked him how much he could give. He said, $75 a month. I thought a moment. Says I, ‘All right; I will take $75 a month, but I will not agree beyond the first of January.’ He says, ‘All right; we will call it $75 a month until the first of January, and then we may make a new bargain.’ ” This testimony tended to show a hiring until January 1st, and was sufficient, at least, to send that question to the jury. Moreover, after the motion was denied, additional evidence was given tending to prove the same proposition. The motion for a nonsuit on the ground stated was, therefore, properly denied.

2. On cross-examination the following questions were put to the plaintiff: “You represented to Mr. Van Valkenburgh (one of the defendants) that you were a book-keeper and competent to keep books, did you not? What business were you engaged in after you left the employ of the defendants?” Counsel for defendants further offered to show by the witness (the plaintiff) that he refused to obey the proper and lawful orders of the defendants in the matter of keeping the books and in the conduct of his business, and that there was no other reason for his discharge. The court sustained objections to the questions and offer on the ground that the same were not proper cross-examination. The first of the above questions was quite immaterial. When the plaintiff accepted employment to perform services for the defendants, requiring skill on his part, he impliedly undertook that he possessed such skill, and it is of no importance whether he represented that he possessed it or said nothing about it. Had the question been allowed, it would have been of no consequence whether it was answered in the affirmative or negative. Neither the obligation of the plaintiff nor the rights of the defendants would have been affected by the answer. But, if erroneously rejected, it is not an error that will work a reversal of the judgment.

Had the witness not been the plaintiff there can be no doubt that both questions and the offer were properly rejected as not being proper cross-examination, for the reason that the witness had not been examined in chief on these subjects. True, he had testified to a conversation with the defendant Van Valkenburgh, and the defendants were entitled to the whole of that conversation; but the first question (besides being immaterial) is general and not directed to that conversation. The other question and the offer call for purely defensive testimony on subjects concerning...