Oak Leaf Mill Co. v. Cooper

Decision Date25 March 1912
PartiesOAK LEAF MILL CO. v. COOPER.
CourtArkansas Supreme Court

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by W. J. Cooper against the Oak Leaf Mill Company. Judgment for plaintiff; defendant appeals. Reversed, and remanded for new trial.

N. P. Richmond and Henry Berger, both of Malvern, for appellant. J. C. Ross, of Malvern, for appellee.

FRAUENTHAL, J.

This is an action for the recovery of damages for an alleged breach of a parol contract for personal services. The appellant is a domestic corporation, engaged in the manufacture of lumber, and in his complaint the appellee alleged that in October, 1910, through its general agent, the appellant employed him to work for it during the entire year of 1911 at a salary of $100 per month; that he began to work for appellant under said contract on January 2, 1911, and continued to work thereunder until January 11, 1911, when he was discharged without cause. He alleged that appellant had paid him his wages for the month of January, 1911, but refused to make any further payment to him; and he sought by this suit to recover $100 per month for the remainder of said year. The appellant denied that it had employed appellee for a year, or for any period longer than by the month, or that it had discharged him without cause; it further pleaded the statute of frauds as a bar to any recovery upon the alleged contract. The trial resulted in a verdict in favor of the appellee.

The appellee testified that about October 1, 1910, he was employed by the appellant at a salary of $75 per month, and later during the same month, on October 20, 1910, he entered into a verbal agreement with appellant's manager, whereby he was employed for the remainder of the year 1910 and all of the year 1911 at a salary of $100 per month; that he continued work until December 24, 1910, when he became sick; that he returned to work on January 2, 1911, and worked until January 5th, when he again became sick, and returned on January 11th to continue his work, when he was discharged without cause. Appellee then introduced other witnesses whose testimony tended to corroborate him as to his sickness, and introduced no further testimony than his own relative to said alleged oral contract. He then rested his case, and the appellant moved the court for a peremptory instruction. Thereupon counsel for appellee asked that he be permitted to introduce other testimony, in order to further develop his case, which request was granted by the court, over appellant's objection. The appellee then testified that on January 2, 1911, he orally renewed the contract for his employment for the entire year of 1911, and entered upon the service under such renewal.

It is urged by counsel for appellant that the court erred in refusing to give a peremptory instruction when appellee had closed his testimony, and in permitting the introduction of this further testimony, for the reason that there was no allegation made in the complaint that the contract sued upon was made in January, 1911, but, on the contrary, that it was alleged that the contract was made in October, 1910. But if we should hold that the allegation that the contract was made in January, 1911, cannot be inferred from the averments made in the complaint, still the court had the right to permit this pleading to be amended in that particular; and even after all of the evidence was in, it had the right to permit the complaint to be amended, so as to conform to the proof thus made. Our statute of amendments is very liberal. Kirby's Digest, §§ 6140, 6145, and 6148. Under these provisions of the statute, it has been held by this court that, where the parties to a cause have directed their proof to a certain issue consistent with the original claim, but not within some allegation made by the complaint, an amendment of such pleadings will be allowed to conform to the proof. Trippe v. Duval, 33 Ark. 811; Ry. Co. v. Dodd, 59 Ark. 317, 27 S. W. 227. The allowance of such an amendment is left largely to the discretion of the trial court; and, unless it appears that the complaining party has been materially prejudiced by reason of such amendment being allowed, such discretion of the trial court will not be controlled. McFadden v. Stark, 58 Ark. 7, 22 S. W. 884; Rucker v. Martin, 94 Ark. 365, 126 S. W. 1062, and cases there cited.

The appellant does not claim that it was surprised by the admission of this testimony. It did not ask for a continuance to meet the altered issue, if such it was; nor does it now claim that it was not thereafter able to adduce all the testimony which it desired relative to this issue. It follows that it was not prejudiced by the ruling of the court in admitting this testimony, and thereby permitting the complaint to be amended in this regard, if it was necessary for that to be done.

It is also contended by counsel for appellee that appellant did not in its answer plead the statute of frauds; but we are of the opinion that the answer sufficiently sets up this plea, and if the appellee thought that the language was ambiguous in this particular it was his duty to ask that this pleading be made more definite and certain. This plea of the statute of frauds was recognized at the trial as an issue in the case, and testimony was directed towards it, and instructions given bearing upon it, so that it would appear that both parties, as well as the trial court, understood that the answer set up the plea of the statute of frauds.

The manager testified that he made no contract at any time with appellee, whereby he employed him for a longer period than one month, and that he made no contract of any kind with him in January, 1911, and that he had reasonable cause for discharging him on January 11th. These were issues in the case; but the cause was also tried upon the plea made by the appellant of the statute of frauds. Upon this plea, the appellant asked the court to give, amongst others, the following instruction, which was refused: "(4) The court instructs the jury that if you find from the evidence in this case that the only contract made between the plaintiff and the defendant, in which it was agreed that the plaintiff was to receive $100 per month for his services, was made on October 20, 1910, and to extend through said year of 1910 and 1911, and that the plaintiff presented himself on January 2, 1911, to carry out said contract so made, the court instructs you that the defendant was not legally bound to receive him into its service; and if it did do so it had a right to discharge him, without incurring any other liability than for the payment of his wages for the time he actually served."

At the request of the appellee, however, the court gave the following instruction: "(1) You are instructed that this is a suit for the recovery of damages on account of an alleged wrongful discharge of plaintiff by the defendant. This suit is brought upon an alleged oral contract between plaintiff and defendant's general manger; and you are to be the judges of what the contract was, after taking into consideration all of the evidence and circumstances bearing upon the case. If you believe from a preponderance of the evidence that plaintiff was employed by the defendant's general...

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4 cases
  • Madill v. Spokane Cattle Loan Co.
    • United States
    • Idaho Supreme Court
    • 23 Octubre 1924
    ... ... Morrison, 78 Me. 160, 57 Am. Rep. 790, 3 ... A. 185; Sharp v. Knox, 48 Mo.App. 169; Oak Leaf ... Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130; ... Austrian & Co. v. Springer, 94 Mich. 343, ... ...
  • Oak Leaf Mill Company v. Cooper
    • United States
    • Arkansas Supreme Court
    • 25 Marzo 1912
  • J.L. Mott Iron Works v. Metropolitan Bank
    • United States
    • Washington Supreme Court
    • 28 Febrero 1914
    ... ... 1644(D); Brett v ... Bassett, 63 Iowa, 340, 19 N.W. 210; Oak Leaf Mill ... Co. v. Cooper, 103 Ark. 79, 146 S.W. 130; Nichols v ... Oregon Short Line ... ...
  • Biston Coffee Co. v. G. T. Cazort & Co.
    • United States
    • Arkansas Supreme Court
    • 22 Octubre 1923
    ...of that employment." Keith v. Herschburg, 48 Ark. 138, 2 S. W. 777; Brown v. Brown, 96 Ark. 456, 132 S. W. 220; Oak Leaf Mill Co. v. Cooper, 103 Ark. 179, 146 S. W. 130. Thompson was an admitted traveling salesman of appellant engaged in selling coffee. The undisputed evidence reveals that ......

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