Schneer v. Lemp

• Decision Date: 31 October 1852
• Parties: SCHNEER, Respondent, v. LEMP, Appellant.
• Court: Missouri Supreme Court

17 Mo. 142

SCHNEER, Respondent,

v.LEMP, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. It is error for a court to instruct a jury upon the weight and sufficiency of evidence.

2. It is error to give contradictory instructions.

Appeal from St. Louis Law Commissioner's Court.

This was an action brought by Schneer against Lemp for the value of services alleged to have been rendered as foreman of the defendant's brewery. At the trial, the plaintiff offered evidence tending to show that he was at work in defendant's brewery, as foreman, from March 27th, 1850, to August 12th, 1851, and it was admitted that the wages claimed were reasonable. Plaintiff also offered evidence tending to show that, at the time he was employed, defendant was in partnership with one Kaegle, and that this partnership was dissolved before the end of the first year. Defendant offered evidence tending to show that plaintiff was originally hired by the year, and that he continued in Lemp's employ after the dissolution of the partnership, under an express contract to serve by the year, at the annual salary of $500, and that plaintiff left defendant's service on the 12th of August, 1851, before the completion of the year's service, without any good cause, and against the will of the defendant. The following instructions were given for the plaintiff:

1. If the jury believe from the evidence that plaintiff was employed on or about the 27th of March, 1850, to work for an entire year at a stipulated price, in a brewery carried on by the defendant and some other person or persons in partnership with him, still they cannot infer that plaintiff worked under the same agreement for the second year, merely from the fact of his continuing to work on in the same brewery after the expiration of his first year, if the jury believe from the evidence, that before the commencement of the second year, said partnership was dissolved, and that said brewery was not, after said dissolution, carried on by said partnership.

2. The jury cannot find for defendant on the ground of there being any special contract for the second year.

3. Unless the jury are satisfied from the evidence that, at the making of the agreement, plaintiff and defendant understood and agreed that plaintiff bound himself to remain in the employment of defendant during the space of an entire year, they cannot find for the defendant on the ground that the contract was for an entire year; and proof that he would be paid at the rate of so much per year, is not proof conclusive that he agreed to work for an entire year.

4. If the jury believe from the evidence that the first hiring was made by plaintiff with defendant and another person, then defendant's partner; that said partner had ceased to be such by or before the expiration of the first year of plaintiff's service, then no inference therefrom can be drawn as to the nature of the hiring, after the expiration of the said first year.

5. If the jury believe from the evidence that Kaegle ceased to be a partner of Lemp by or before the expiration of plaintiff's year, then defendant is liable to plaintiff for the value of plaintiff's services since the expiration of said year.

6. The fact of hiring at a fixed price per year is not evidence of a hiring for an entire year, if it is the general custom, in making such contracts, to consider them binding only during the pleasure of the parties.

On motion of defendant's counsel, the court gave the following instructions:

1. If the jury believe from the evidence that plaintiff was employed in defendant's brewery by the year, at $500 per year, and that plaintiff left defendant's employ before the end of the year, voluntarily and without any just cause, they will find for the defendant.

2. If the jury believe there was a hiring by the year at $500 per year, then plaintiff is not entitled to recover any thing without showing a full performance on his part.

3. If the jury...