Ogden-Howard Co. v. Brand

• Decision Date: 25 November 1919
• Citation: 30 Del. 482,108 A. 277
• Court: Supreme Court of Delaware
• Parties: THE OGDEN-HOWARD COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. JOHN H. BRAND, plaintiff below, defendant in error

108 A. 277

30 Del. 482

THE OGDEN-HOWARD COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. JOHN H. BRAND, plaintiff below, defendant in error

Supreme Court of Delaware

November 25, 1919

In the Supreme Court.

ERROR TO SUPERIOR COURT for New Castle County, No. 4, June Term 1919.

Actions of debt by John H. Brand before a justice of the peace against the Ogden-Howard Company. Judgments for the plaintiff. Defendant brings appeals to the Superior Court (Judges Con-RAD and HEISEL sitting). Verdicts and judgments for plaintiff. Defendant brings errors. Judgments reversed.

John H Brand, the plaintiff below and defendant in error, was employed by the Ogden-Howard Company, the defendant below and plaintiff in error, as buyer and manager, under the terms of a written contract under seal, for the period from February first, 1914, to January first, 1919, at a salary of $ 100 a week. The contract provided that the employment might be terminated at any time by either party to the contract giving to the other six months' notice in writing of such intention to terminate, and after the expiration of the six months' notice the agreement should terminate and be void. The contract provided that Brand should devote the whole of his term, attention and energy to the performance of his duties under the contract during the time of the agreement. On February twenty seventh, 1918, the Ogden-Howard Company dis charged Brand from its employ as buyer and manager without giving him prior notice in writing, and thereafter Brand performed no services for the company although ready and willing to do so until April first following.

Brand brought the five suits now before this court on a writ of error, together with several other suits, before a justice of the peace against the Odgen-Howard Company for salary subsequent to the date of his discharge and prior to the expiration of the term of notice, each suit being for the sum of $ 100 salary claimed under the contract for the week mentioned in the particular suit. The judgments before the justice of the peace in favor of Brand were appealed to the Superior Court, and by consent of both, parties the five suits now in this court and two others were tried together. Judgments were entered in the Superior Court in favor of Brand for $ 100 each in the five suits. By a stipulation filed in the Supreme Court, Counsel agreed that the record and briefs filed in the first of the cases on the docket of the Supreme Court should be considered as having been filed in the remaining four cases on the docket. In the Superior Court the plaintiff filed a pro narr, in debt. At the trial the defendant introduced evidence to show that Brand did not devote the whole of his time and energy to the performance of his duties as buyer and manager, refused to obey the company's orders, and in other ways neglected and failed to perform his duties.

There are four assignments of error. We will consider only the first which is as follows:

That the court erred in declining to give binding instructions to the jury to return a verdict for the defendant, on the grounds as prayed for by the defendant below, namely, that the only damages recoverable by a wrongfully discharged employe for the unexpired period of the contract, are unliquidated, and not recoverable in an action of debt on contract under seal.

Judgments reversed.

Charles F. Curley for plaintiff in error.

Robert Pennington and Samuel H. Baynard, Jr., for defendant in error.

CURTIS Chancellor, BOYCE and RICE, Associate Judges, sitting.

OPINION

RICE, J.

The question presented by the first assignment of error is whether under a contract of hiring, such as the one before us, an action of debt will lie, where an employee has been wrongfully dismissed during the term of employment, for the recovery of damages for wages after dismissal, nothing being due for wages actually earned.

The plaintiff in error contends that the damages recoverable are not for a sum certain, or capable of being reduced to a certainty by calculation, and therefore an action of debt will not lie.

The defendant in error claims that under the terms of the contract there were two distinct periods of time involved, to wit, the first six months after his discharge without notice as provided in the contract, during which time he was entitled to the sum of one hundred dollars per week, as liquidated damages, and second, the period between the expiration of said six months and the end of the term provided in the contract, during which time the damages were unliquidated. The defendant in error contends that the damages were liquidated and the action of debt was the proper action to bring in each of the five cases now before this court, for the reason that they were brought to recover weekly wages due within the period provided in the contract for notice of its termination, and in support of this contention cites Shea v. Kerr, 17 Del. 530, 1 Penne. 530, 43 A. 843; Love v. Pusey & Jones Co., 19 Del. 577, 3 Penne. 577, 52 A. 542.

The principle of law for which the defendant in error contends is generally known as the "constructive service" doctrine and he claims that the doctrine has been recognized in this state in Shea v. Kerr. This doctrine has been recognized in some jurisdictions with approval but by the great weight of authority in this country it has not been approved.

In the case of Shea v. Kerr, supra, the court stated the measure of damages to be "the amount the defendant agreed to pay her as salary for the two weeks," covering the period of notice in the agreement yet in considering the Shea Case the fact must be taken into consideration that there was no evidence introduced at the trial to show that the plaintiff earned, or by reasonable diligence could...