San Antonio Light Pub. Co. v. Moore

• Decision Date: 10 April 1907
• Citation: 101 S.W. 867
• Parties: SAN ANTONIO LIGHT PUB. CO. v. MOORE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

101 S.W. 867

SAN ANTONIO LIGHT PUB. CO. v. MOORE.^*

Court of Civil Appeals of Texas.

April 10, 1907.

On Rehearing, May 1, 1907.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by H. J. Moore against the San Antonio Light Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Davis & McFarland, for appellant. Frank H. Wash and W. W. Walling, for appellee.

JAMES, C. J.

Appellee brought this suit against appellant in the district court of Bexar county, Fifty-Seventh judicial district, to recover the sum of $2,000, alleging in his first amended original petition, in substance, that on or about November 20, 1905, defendant, through its then president and general manager, T. B. Johnson, employed appellee from January 1, 1906, to December 31, 1906, in the capacity of manager of the advertising department of appellant; that said contract of employment was oral, and not in writing; that appellee was to receive under his said contract of employment a certain specified sum per week, to wit, $35 at first, and, later $40 per week, and certain other things by him denominated perquisites; that subsequent to the making of said oral contract, and to wit, on or about January 10, 1906, defendant, through its said president and general manager, orally renewed and ratified said oral contract; and that appellee continued to work under his said oral contract and renewal thereof until about June 9, 1906, when he was, in violation of his alleged contract, wrongfully discharged by appellant. Appellant answered by a general demurrer, special exceptions, a general denial, and a special answer, alleging that appellee's contract, if any, made November 20, 1905, was within the statute of frauds, and therefore unenforceable in law; that if appellee had a contract it was from week to week, and terminable at the end of any week, at the will and pleasure of appellant, without notice to appellee; that appellee, if he had a contract as alleged (and none was admitted), neglected, failed, and refused to perform the work which he was employed to do, and that he was wholly incompetent to do such work; that if appellant had a contract with appellee, and none was admitted, the same was unauthorized and void; that if appellee renewed, ratified, and confirmed the said oral contract of date November 20, 1905, between the parties to this suit, there was no sufficient consideration for same, and therefore said renewal contract could not form a basis for a recovery herein; and that appellee at all times failed to seek the same kind of work, mentioned in his petition, or any other kind of work so as to reduce the amount of his alleged damages. Appellant further alleged certain offsets in the nature of a cross-action, aggregating $477.50. Appellee filed his first supplemental petition, which contained special exceptions, and a general denial directed at appellant's said answer. The case was tried before a jury, and resulted in a verdict in favor of appellee as against appellant for the sum of $900.

Under assignments of error Nos. 1 to 12 inclusive appellant makes the following propositions: (1) The allegations in the petition: "That on January 10, 1906, said contract was again renewed, ratified and confirmed by defendant" were but conclusions of the pleader, and the facts showing a contract renewed or confirmed should have been alleged. (2) A parol contract entered into to begin at a future date and to run a year from such future date is within the statute of frauds and a part performance of such a contract does not remove the bar. (3) A consideration is essential to every contract and in a suit upon same the pleading must disclose a consideration. (4) No action can be maintained in Texas upon any agreement which is not to be performed within the period of one year from the making thereof. (5) A contract unenforceable under the statute of frauds cannot be ratified or confirmed by corporate officers. (6) Every novation or new obligation must be founded upon a lawful consideration.

The petition was not bad in special demurrer upon the ground stated in above proposition No. 1, when the entire allegation is taken into consideration, which is as follows: "That, thereafter, to wit, on or about January 10, 1906, the aforesaid contract was again renewed ratified and confirmed by defendant by and through its president and general manager, T. B. Johnson, by said president and general manager instructing plaintiff to continue in the employment of said company under his contract as previously set out, for the time stated, and, in consideration of the said plaintiff so continuing in the employment, and in consideration of the mutual agreements aforesaid, and of plaintiff agreeing to so continue to work until the end of the year, to wit, until the 31st day of December, 1906." We think with appellant that the original contract alleged was within the statute of frauds. Moody v. Jones (Tex. Civ. App.) 37 S. W. 379. And also that part performance under such contract would not give it vitality. Upon this theory the original contract was not obligatory upon the parties, and in law it was no contract. It must follow that the arrangement alleged to have occurred on January 10, 1906, was the only enforceable contract stated by the petition, and that if the allegations in reference thereto showed it to possess the elements of a contract, and embrace the allegations of a consideration supporting it, then that it was not within the statute of frauds, because it had reference to a term of employment which was to expire within a year from said date.

Neither party being bound by the first arrangement, it cannot be said that the second arrangement was not a contract because it involved the performance of things the parties were already bound to perform. Their minds then met on the terms of the plaintiff's employment. It was as if the parties had made an original contract on January 10, rather than a renewal of the first one, and, upon this view, it cannot be doubted that the petition sufficiently alleged the element of a contract including a consideration involved in the mutual agreements stated. We think these remarks reach all the above propositions.

Assignments 13 to 19 are grouped. There is some difficulty in passing on the propositions under them owing to the manner of briefing. The thirteenth and fourteenth assignments are not well taken, for the reason that it was not necessary for the petition to allege that plaintiff, after his discharge, endeavored to find work, or the amount of his earnings. Pac. Ex. Co. v. Walters (Tex. Civ. App.) 93 S. W. 496. The remainder of the above assignments depend to a certain extent on the testimony of what plaintiff did in regard to getting employment of the same nature, or other work, after he was discharged. There was testimony that he endeavored to some extent to get like work and failed. There was testimony that he made efforts to obtain work in his line generally, and to what extent he succeeded. He was only required to make reasonable efforts, and the jury was the proper judge of such matters. Therefore we must overrule the sixteenth and seventeenth assignments, which complain of the refusal to set aside the verdict, for the reason that the undisputed evidence shows that plaintiff did not in good faith seek employment of the same kind, or of any kind. We also overrule the nineteenth, because it also is based on the assumption that there was no evidence that plaintiff made an effort to secure employment.

The eighteenth assignment is that the court erred in its charge as to the amount plaintiff was entitled to recover, in that it failed to charge the jury that the reasonable value of plaintiff's services during the time he did not work should be deducted from the contract amount, because the undisputed evidence showed that plaintiff's services were worth $55 per week, and the specific...