Posey v. Garth

• Decision Date: 31 August 1841
• Citation: 7 Mo. 94
• Parties: POSEY v. GARTH.
• Court: Missouri Supreme Court

7 Mo. 94

POSEY

v.GARTH.

Supreme Court of Missouri.

August Term, 1841.

APPEAL FROM THE HOWARD CIRCUIT COURT.

CLARK, for Appellant. 1st. That where there is a contract to perform labor for a specified length of time, or do a particular act, and the party undertaking to do the act or perform the labor is prevented from doing so by the party employing him, he may sue and recover the full amount of the contract. 3 Mo. R. 230; 4 Mo. R. 41. 2nd. That in contracts like the present, the party discharging the other cannot, when sued, excuse himself upon the ground that the party discharged had or was about to do an injury to his property, but must bring his action for the injury, if any is done. 3rd. That in all cases where the subject matter of the controversy is properly cognizable in the circuit court, costs must be adjudged to the one recovering, however small that recovery may be. Rev. St., act relating to Costs, §§ 5, 14; Talbot v. Greene, 6 Mo. R. 458.

DAVIS, for Appellee. Defendant contends that the evidence was properly given to the jury, and that the instruction was correct. Defendant also contends that the costs of suit was properly adjudged against plaintiff, as the finding was below the sum of ninety dollars. See Jones & Jones v. Relfe, Adm'r, 5 Mo. R. 542; Rev. Code, title Costs.

SCOTT, J.

Bird Posey was employed by Dabney Garth, as overseer, for one year, at the price of one hundred and seventy-five dollars; his term of service commenced on the 1st January, 1838, and he continued industriously employed for Garth until some time in April following, when Garth told Posey that he must leave his service, that he had been negligent, and had maltreated and injured his negroes: thereupon Posey left Garth's employment. It appears that Posey, the day before he was ordered to leave Garth's service, for some fault supposed to have been committed by one of Garth's negroes under his control, attempted to punish the negro by whipping; the negro, the bill of exceptions states, resisted by refusing to obey Posey's order. Posey thereupon struck the negro with a handspike and knocked him down, and then beat him with the handspike in such a manner that in four days thereafter he died from the effect of the blows. Posey afterwards instituted an action against Garth for his year's wages, claiming the whole amount, and recovered sixty-one dollars, the costs being adjudged against him. A new trial was asked for by Posey, and refused, and he brings this cause here by appeal Under this state of facts is he aggrieved by the judgment of the court below?

If a person retain a servant for a year at wages, the performance of the service is a condition precedent to the payment of wages, and the servant cannot recover them before he has performed the year's service. If he is prevented by his employer from fulfilling his contract, and is wantonly and without sufficient cause discharged before the expiration of the period for which he was hired, he is entitled to the wages for the whole period he was to serve: but if there is any fault or misconduct in him toward his employer sufficient to...