Prescott v. Puget Sound Bridge & Dredging Co.

• Decision Date: 02 October 1905
• Citation: 40 Wash. 354,82 P. 606
• Court: Washington Supreme Court
• Parties: PRESCOTT v. PUGET SOUND BRIDGE & DREDGING CO.

82 P. 606

40 Wash. 354

PRESCOTT v. PUGET SOUND BRIDGE & DREDGING CO.

Supreme Court of Washington

October 2, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by N.W. Prescott against the Puget Sound Bridge & Dredging Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mount C.J., and Hadley, J., dissenting in part.

Ballinger Ronald & Battle, for appellant.

Byers &amp Byers, for respondent.

DUNBAR J.

This is the second appeal in this case. It was here before upon a question of the sufficiency of the complaint. We then held that the contract sued upon was not void for uncertainty. 31 Wash. 177, 71 P. 772. When the cause was remanded, the defendant filed an answer, denying generally the allegations of the complaint, and alleging affirmatively that by reasonable diligence plaintiff could have obtained employment of the same kind and of equal wages as alleged in the complaint, and that plaintiff was in no wise injured or damaged by the act of defendant. The affirmative defense was denied by the reply. On these issues the cause was tried to the court and a jury. Verdict was returned in favor of the plaintiff for $700. Judgment was subsequently entered upon the verdict, and the defendant appeals.

It is alleged that the court erred (1) in overruling the defendant's objection to the impaneling of a jury to try the cause, which objection was based upon the ground that the $12 jury fee required by the statute of 1903 had not been paid as the law requires; (2) in not granting defendant's motion for nonsuit, which motion was based upon the ground that the plaintiff had failed to sustain the allegations of his complaint; (3) in not granting defendant's request for peremptory instructions to the jury to return a verdict for defendant; (4) in allowing plaintiff to introduce evidence showing the length of time that work at Manila would last; and (5) error in certain instructions which we will notice as we proceed. There is no merit in the first assignment of error, as the jury fee was paid. The second and third assignments are based upon the same hypothesis, viz., that the proof failed to sustain the allegations of the complaint. This question was submitted to the jury on competent testimony, and this court will not disturb its finding in that respect.

The pivotal question in this case is involved in assignment 4 alleging error in allowing plaintiff to introduce evidence showing the length of time that work at Manila would last. A copy of the complaint in this action will be found in 31 Wash. 177, 71 P. 772. It is contended by the appellant that in no event could this contract be construed to be a contract for more than a month, and that the former decision of this court was only to the effect that the contract was not so indefinite as to render the same void, and could not be construed to go further than holding that plaintiff was at least entitled to nominal damages. The decision of this court on the former appeal has become the law of the case, so that the construction of such decision is the important question to consider here. We do not think, from a review of such decision, that it can bear the limited or restricted construction placed upon it by the appellant. In the course of the opinion it is said: 'The contract was one which, if it did not give the appellant the right to enter at once into the service of the respondent, gave him the right to enter therein within a reasonable time after its execution, and was broken, within either view, when the respondent wrongfully and without cause refused to permit the appellant to enter into the service at all. It was not, therefore, so indefinite and uncertain as to the time of the commencement of the service as to render it void. Nor was it so indefinite and uncertain as to its duration as to render it void. While its duration was uncertain in the sence that it was not shown how long the work undertaken by the respondent at Manila would last, yet it was not a contract of employment for an indefinite period, in the sense that either party could terminate it at will. It was a contract to serve on the one part and to employ on the other, obligatory upon each until the happening of a particular event, and until that event happened neither party could terminate the contract without committing a breach thereof.' It will be readily seen that the happening of the particular event in this case was the finishing of the projected work at Manila, and the language of this court is absolutely inconsistent with the idea that the damages for the breach would only be nominal, or that the contract could be terminated at the end of the month by either party to the same. The court, continuing, said: 'A contract of hiring is not indefinite, nor terminable at will, because the precise number of days, months, or years that the service is to...