Sharpless Separator Co. v. Gray

• Decision Date: 19 December 1916
• Docket Number: 8210.
• Citation: 161 P. 1074,62 Okla. 73,1916 OK 1037
• Parties: SHARPLESS SEPARATOR CO. ET AL. v. GRAY.
• Court: Oklahoma Supreme Court

161 P. 1074

62 Okla. 73, 1916 OK 1037

SHARPLESS SEPARATOR CO. ET AL. v. GRAY.

No. 8210.

Supreme Court of Oklahoma

December 19, 1916

Syllabus by the Court.

Where a petition is attacked for the first time by objection at the trial to the introduction of any evidence thereunder, and there is not a total failure to allege some essential matter and the allegations are simply incomplete and indefinite or conclusions of law, such objection to the introduction of evidence will be overruled.

In an action to recover damages for the breach of a contract for employment, necessary averments in the petition are: (1) An allegation of the execution of the contract; (2) an allegation of its breach; (3) an allegation of performance or readiness to perform on the part of plaintiff; and, (4) an allegation of the damages sustained by the plaintiff.

Where a petition to recover damages for the breach of a contract for employment contains the necessary allegations to constitute a cause of action for damages for breach of contract, the fact that the damages claimed are denominated salary instead of damages does not render it fatally defective.

The measure of damages for the breach of a contract of employment by the employer is prima facie the sum stipulated to be paid for the services; and the burden of reducing the damages by proof that the servant has, or might with reasonable diligence have, obtained other remunerative employment of a like character after his discharge, rests on the employer.

The defendant having neither pleaded nor proved that plaintiff had, or might with reasonable diligence have, secured other remunerative employment after his discharge, an instruction directing the jury that, if they found for the plaintiff, it would be their duty to award him the balance due under the terms of the contract, is not erroneous.

Instructions examined, and held free from reversible error.

Commissioners' Opinion; Division No. 1. Error from District Court, Oklahoma County; John W. Hayson, Judge.

Action by C. H. Gray against the Sharpless Separator Company, a corporation, and another. There was a judgment for plaintiff and defendants bring error. Affirmed.

Everest & Campbell, of Oklahoma City, for plaintiffs in error.

Ledbetter Stuart & Bell, of Oklahoma City, for defendant in error.

RUMMONS C.

This action was commenced in the district court of Oklahoma county on June 18, 1915, by the defendant in error, hereinafter called the plaintiff, against the plaintiffs in error hereinafter called defendants, to recover the sum of $890, with interest, for the breach of a contract of employment for the year 1914. The petition of plaintiff, omitting the caption, signature, and exhibits, is as follows:

"Now comes the plaintiff and represents to the court that on or about the 11th day of October, 1913, the defendants entered into a written contract with the plaintiff, whereby they employed him to work for them at a salary of $125 per month from the 1st day of January, 1914, until the 1st day of January, 1915, said salary of $125 payable monthly; that on the 1st day of January, 1914, the plaintiff entered upon said contract and worked for the said defendants under said contract until the 1st day of June, 1914, a copy of said contract, which is a proposition accepted by this plaintiff is hereto attached, marked Exhibit A and made a part hereof; that during the month of May, 1914, the defendants, without any excuse or cause, discharged this plaintiff from their services, and have failed and refused since the 1st day of June, 1914, to pay him said salary, according to contract, although this plaintiff has been ready and willing to comply with his part of said contract during all of said time, and has tendered to the defendants his services.

That the said defendants, the Sharpless Separator Company and the Sharpless Separator Company of Texas, are one and the same institution, and the Sharpless Separator Company of Texas is merely the name under which the Sharpless Separator Company manages its branch office at Dallas, Tex., and the said Sharpless Separator Company owns all the assets and has assumed all the liabilities of the said Sharpless Separator Company of Texas, both of said corporations being foreign corporations and nonresidents of the state of Oklahoma.

That by reason of the execution of said contract and the discharge of this plaintiff, and by reason of the failure of the defendants to pay this plaintiff his salary from the 1st day of June, 1914, the defendants have become liable to this plaintiff in the sum of $875, with interest on each month's salary from the end of said month until this date at the rate of 6 per cent. per annum, or in the total sum of $890, for all of which the defendants have become liable to this plaintiff.

And this plaintiff here states that his claim is a civil action for the recovery of money, the same being for salary contracted for and now past due; that said claim of plaintiff against defendants is just, and the plaintiff ought to recover said sum of $890, with interest thereon from this date at the rate of 6 per cent. per annum. And this plaintiff here states and alleges that the defendants are foreign corporations and nonresidents of the state of Oklahoma.

Wherefore plaintiff prays that he have judgment against said defendants and each of them for said sum of $890, with interest thereon from this date at the rate of 6 per cent. per annum, and that an attachment issue requiring the sheriff to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys, and effects of the defendants and each of them in said county, not exempt by law from being applied to the payment of plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim. Plaintiff prays for such other and further relief as he may be entitled to in law and in equity."

Defendants answered, denying the execution of the written contract alleged in the petition, and alleging that the plaintiff entered the employ of the defendants in the year 1914, under an oral contract between the plaintiff and defendants by the terms of which defendants reserved the right to discharge plaintiff at any time by giving 30 days' notice, and alleging that such notice was given by defendants, and that all the terms of said contract was complied with by defendants prior to plaintiff's discharge by defendants. Plaintiff replied, denying the allegations of the answer. The cause was tried to a jury, resulting in a verdict in favor of the plaintiff in the sum of $875. The defendants, having unsuccessfully moved for a new trial, prosecute this proceeding in error to reverse the judgment of the court below.

Under a number of assignments in error, the defendants present four questions for review: (1) That the court erred in overruling the objection of defendants to the introduction of any evidence, for the reason that the petition failed to state a cause of action; (2) that the evidence of the plaintiff did not justify a verdict in his...