Spahn v Willman

• Decision Date: 07 December 1897
• Citation: 17 Del. 125,39 A. 787
• Court: Delaware Superior Court
• Parties: JOHN SPAHN, d. b. a., v. ANTON WILLMAN, p. b. r

39 A. 787

17 Del. 125

JOHN SPAHN, d. b. a., v. ANTON WILLMAN, p. b. r

Superior Court of Delaware, New Castle County

December 7, 1897

Superior Court, New Castle County, November Term, 1897.

ACTION of assumpsit (No. 111 to May T., 1896,) with the common counts and one special count for work and labor and one for special damages. The pleas were non-assumpsit and reps. and issues. There was no bill of particulars filed. The special count set forth damages by reason of the non-performance of a contract on the part of defendant below. Willman alleged that he was hired by Spahn to take charge of his farm in Brandywine Hundred for the period commencing September 14th 1896, and continuing until the following 25th of March, 1897 at the rate of ten dollars per month and his board, he to live in the farm house; that he went upon the said farm under the contract and worked on it and took care of it for two months at the end of which time Spahn put one Wiggins in the house to take charge of the place and the goods of Willman were moved to another part of the house; that he then left the place, considering that that was a sufficient discharge or violation of the contract. His claim was for $ 94.00 for wages, board and room rent covering the time between his alleged discharge and the expiration of the contract.

The appellant alleged that Willman was not the tenant of the farm, but was only hired at ten dollars per month and board to work on the farm for an indefinite period; that Wiggins moved into the house after Willman had located there with the latter's knowledge and consent, and that the contract, if any, was made on Sunday and was therefore null and void under the law.

When the plaintiff below had rested, the counsel for the defendant below moved for a non-suit on the following grounds:

First Because the servant had sued his master for the act of Wiggins, a third party, and in his testimony proved a tenancy of Wiggins, and could not therefore hold Spahn liable for what Wiggins as tenant did; if the plaintiff proved that Wiggins was Spahn's agent he was bound to prove that the agent acted within the scope of his authority, in order to bind Spahn, and this he had failed to do. Assuming that the contract was valid and that Spahn had hired Willman to the 25th day of March and was bound to pay him, still there was no discharge shown on the part of the appellant, but simply an act of the tenant, Wiggins, who went on the farm under some contract with Spahn.

Second, That by Willman's own testimony, the contract was made on Sunday and was therefore void.

The Court held that there was some evidence on the part of the plaintiff below that he was hired by Spahn and discharged by Spahn, and that matter as well as the agency of Wiggins was a matter for the jury; and, furthermore, that even though it be admitted that the Sunday contract was void, there were several day's work performed by Willman for which he had not been paid. The non-suit was refused.

Counsel for the defendant below produced a witness and offered to prove by him that he had offered Willman work at a certain rate during the time of the continuance of the alleged contract with Spahn and after he had left the latter's employ.

This line of examination was objected to by plaintiff's counsel, who contended that where there is a breach of a contract, as in the present case, the party not responsible for said breach was not obliged to look for work, but could sit down and wait until the end of the period covered by the contract and then sue for his wages. Defendant's counsel urged that even where the servant had been wrongfully discharged by the master, the actual damages is the amount which he would have received as wages if he had been permitted to complete his contract, less what he has earned in the meantime or what he might have earned by due diligence in seeking employment in the same or similar business.

Wood on Master and Servant, Sec. 125; Polk vs. Daly, 14 Abbott's Practice Cases, 156; Hamilton vs. McPherson, 28 N.Y. 76; 14 American and English Ency. of Law, 793; 2 Sutherland on Damages, 495; Sedgwick on Damages, 93.

Verdict for the plaintiff for $ 80.00.

Peter L. Coopcr, Jr., for plaintiff below.

William F. Kurtz for defendant below.

LORE, C. J., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

LORE, C. J

You may show what he earned and received, during the time for which he claims the defendant should pay him.

SPRUANCE J:--

It goes to the measure of damages.

PLAINTIFF'S PRAYERS.

The plaintiff below prayed the Court to charge the jury as follows:

First, That if they should believe the special contract was made for the performance of labor as tenant on the farm for the period of time alleged and the plaintiff was discharged before the end of said period by reason of no default upon his part, he was entitled to recover wages, with any actual damages which he had sustained, and that the true measure of damages was the value of his wages and his board and lodging, which were covered by the special contract, less whatever wages he made working for other people during said period.

Second, That if the contract was made on Sunday, and both of the parties thereafter agreed to the terms of the contract and entered into a part performance thereof, and by their subsequent acts ratified the same, then it was a valid contract.

Williamson vs. Brendenburg, (Appellate Court of Indiana) 6 Ind.App. 97, 32 N.E. 1022; Russell vs. Mortgage, 79 Iowa 101, 44 N.W. 237; McKinnis vs. Estis, 81 Iowa 749, 46 N.W. 987.

Third, That if the jury should find the contract void, they nevertheless could return a verdict in favor of the plaintiff below, under the count for work and labor, for the work actually done.

DEFENDANT'S PRAYERS.

The defendant below prayed the Court as follows:

First, That if the jury believed the evidence in the case, they must find for the defendant below, as the law arising from the evidence was in his favor.

Second, That there was no agency and no discharge upon the part of the defendant below.

(The Court refused to charge as requested in either of the above prayers, saying that there was evidence on both sides and it was not for the Court to indicate to the jury on which side they thought there was a preponderance of the evidence.)

Third, That if the jury believed that the contract was made on Sunday, no action for a breach of it could be maintained.

Fourth, That if the plaintiff had failed to prove positively his readiness and willingness during the whole time after the alleged wrongful discharge to return to the defendant's employ, he could not recover on the special contract.

Fifth, That if the jury believe from the evidence that the contract was made as an entirety, then the plaintiff could not recover either on the special contract or on the common counts unless the whole contract was performed, such performance being a condition precedent to his claim to anything.

Sixth, That if the jury believe that there was simply an indefinite hiring at so much wages per month, then either party could put an end to the contract at any time without notice.

(The Court refused to entertain the above prayer, as it involved the nature of the contract for hiring, which was a matter for the jury to determine.)...