Odoneal v. Henry

• Decision Date: 05 December 1892
• Citation: 12 So. 154,70 Miss. 172
• Court: Mississippi Supreme Court
• Parties: J. H. ODENEAL ET AL. v. W. M. HENRY

12 So. 154

70 Miss. 172

J. H. ODENEAL ET AL. v. W. M. HENRY

Supreme Court of Mississippi

December 5, 1892

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

Appellee Henry, brought this action December 9, 1891, against J. H Odeneal and Anna M. Odeneal, claiming $ 1,331.50 damages for the non-performance of an alleged contract of hiring. The declaration alleged that on the twenty-fourth day of December, 1889, defendants contracted with plaintiff to take charge of and manage their stock-farm and dairy, near Jackson, for a period of one year, at a monthly salary of $ 60, to be paid in money, and, in addition, that they were to be allowed the use of a house and garden, and such dairy products as he might need for himself and family--these perquisites alleged by plaintiff to be worth $ 40 per month that in November, 1890, this contract was renewed by defendants for another year, beginning December 24, 1890 that plaintiff continued faithfully to discharge his duties until about March 24, 1891, when he was discharged without cause; that he made reasonable effort to obtain employment about Jackson and elsewhere, without success, until about December 1, 1891, when he obtained unremunerative employment. Plaintiff claims as damages the full amount of salary and alleged value of the perquisites during the two years, less the amounts received.

In view of the opinion, it is not necessary to set out the course of the pleadings, or to advert to the many points having reference to the court's rulings thereon.

On the trial, the plaintiff testified that the contract, as mentioned in the declaration, was orally made with defendant, J. H. Odeneal; that he and Odeneal discussed the whole matter, and that plaintiff made him a verbal proposition, which Odeneal, after consideration for a few days, accepted by a letter, dated December 12, 1889. It was contended by defendants that the contract was evidenced by a letter from Henry to Odeneal, dated December 11, 1889, and the abovementioned letter of Odeneal in reply. The letters were produced, and their identity not questioned. The letter to Odeneal was as follows:

"OSBORN, MISS., December 11, 1889.

"Mr. J. H. Odeneal, Jackson, Miss.:

"DEAR SIR--Yours of tenth has been received and carefully noted, and, in reply, I would say that I could not accept of your proposition. I am willing to take $ 600, and buy or pay for the use of the dairy. The expense of moving my furniture will be very heavy to start with. I will give my undivided attention to the business for the above-named price. You will please let me hear from you by return mail, as there are others waiting on me, but would prefer living with you.

Respectfully,

"W. M. HENRY."

Odeneal received this on the day following, and at once answered, under date of December 12, 1891, accepting his proposition, in the following words: "Yours of eleventh inst. is received. I will accept your proposition."

After the introduction of these letters, which contradicted the testimony of plaintiff, that the contract was verbal and its terms different from those mentioned in the letters, he was asked if he had any explanation to offer about the matter, and he replied in the negative, and the contradiction was not explained.

There was evidence that plaintiff, after being discharged, sought other employment, in Jackson, without success, and, in a few weeks, moved to another state; but what efforts he there made to secure employment, and when he did, in fact, find work, are not shown by any evidence.

Early in the year 1891 Odeneal became dissatisfied with Henry's management, and so informed him, but nothing definite was done until February 17, 1891, when Odeneal wrote plaintiff a letter, the material parts of which were that he was not satisfied with plaintiff's management; that he disliked to make a change at that season, but that plaintiff ought to be looking out for other business; that he had confidence in plaintiff's integrity, and felt satisfied he had done the best he could, but that the results were very unsatisfactory, and it was necessary to cut down expenses, and get a cheaper manager.

Shortly after the receipt of this letter, and as a consequence of it, Henry left the farm, another manager having been employed.

The evidence for plaintiff tended to show that he had attended to all his duties faithfully, and that there was no cause for his discharge; but there was evidence for defendants which tended to show that he was inattentive and unkind to the stock on the farm, at times maltreating them; and also that he had, about the time of his discharge, altered certain entries and made erasures of certain figures on his cash-book, the effect of which would be to falsify his account of the receipts from the farm, and diminish the balance due defendants.

Among other instructions given for plaintiff, were the following:

"2. If the jury believe from the evidence that the letter written by the plaintiff to defendant, dated December 11, 1889, and the letter from Odeneal to plaintiff, dated December 12, 1889, constituted the contract between the parties, then it was a contract from year to year, or by the year.

"5. If the jury believe from the evidence that the defendant employed plaintiff by the year from December 24, 1890, and that the plaintiff was discharged before the expiration of the year for the reasons set forth in the letter of J. H. Odeneal to the plaintiff, dated February 17, 1891, then the jury is instructed that these reasons do not constitute good and sufficient cause for discharging the plaintiff."

Defendants asked for an instruction in these words:

"3. The contract between the plaintiff and defendants did not entitle plaintiff to $ 60 a month, nor to the use, free of charge, for his family, of the dairy products of the farm."

But the court refused it in this form, and gave it after prefacing it with the words: "If the jury believe from the evidence that the letters between the parties of the eleventh and twelfth of December embody the contract."

The court refused the eighth instruction asked by defendants, which was to the effect that the above-mentioned two letters constituted the contract, presumably basing such refusal on the fact that plaintiff had testified that the contract was a verbal one, and that this raised a question of fact for the jury.

The seventh instruction, as asked by defendants, was as follows:

"7. If the jury believe from the evidence that good and sufficient reasons existed for discharging plaintiff, and that there were such reasons, independent of those mentioned in the letter of February 17, 1891, then the jury may consider the same as constituting cause for discharging plaintiff, if the cause was sufficient."

The court refused this instruction as asked, but modified it by making the first clause of it to read as follows: "If the jury believe from the evidence that the defendant had good and sufficient reasons which existed," etc.

The foregoing statement will suffice to illustrate the assignments of error passed upon in the opinion. There was a verdict for $ 442.28. Judgment accordingly, and, after motion for a new trial overruled, defendants appealed.

Reversed and remanded.

Brame & Alexander, for appellants.

1. Whatever the rule may be in other states, it is well settled in this state, that in seeking to recover damages in a case like this, the plaintiff must show diligence in looking for other employment. It is a suit for damages, and it devolves on plaintiff to show his damages. Hunt v. Crane, 33 Miss. 669; Birdsong v. Ellis, 62 Ib., 418; Wood on Master & Servant, 241, 246.

2. Plaintiff's second instruction ought not to have been given. It leaves the jury to say whether the letters constituted the contract, whereas the court should have settled that question. The plaintiff did not deny the letters, but admitted that the letter from Odeneal closed the trade. That letter referred expressly to Henry's letter and the two manifestly made the contract. Plaintiff's statement to the contrary is self-contradictory. But the...