Standard Oil Co. v. Lloyd

• Decision Date: 05 February 1935
• Docket Number: 2 Div. 537.
• Citation: 26 Ala.App. 306,159 So. 371
• Parties: STANDARD OIL CO. v. LLOYD.
• Court: Alabama Court of Appeals

159 So. 371

26 Ala.App. 306

STANDARD OIL CO. v. LLOYD.

2 Div. 537.

Court of Appeals of Alabama

February 5, 1935

Appeal from Circuit Court, Wilcox County; John Miller, Judge.

Action for breach of contract of employment by James A. Lloyd against the Standard Oil Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

John S Coleman and A. J. Bowron, Jr., both of Birmingham, P. E Jones, of Camden, and Bradley, Baldwin, All & White, of Birmingham, for appellant.

James Perdue, of Birmingham, and Bonner &amp Bonner, of Camden, for appellee.

SAMFORD Justice.

The complaint was in one count as follows: "The plaintiff claims of the defendant $2,187.00 as damages, for that said defendant on, towit: August 24, 1932, employed plaintiff as a general salesman, for a period of twelve months from said date, at a monthly salary of $202.50 per month, and on September 30, 1932 said defendant discharged plaintiff from its said employment without just cause, to plaintiff's damage as aforesaid."

This complaint was demurred to on several grounds, none of which are considered except No. 9 in the following language: "For aught that appears, the plaintiff was not in position to carry out his part of the said alleged contract."

The contract between the parties was mutual, imposing obligations on both. On the part of defendant to employ and to pay for services rendered and on the part of plaintiff to have the readiness and ability to render the service contracted for. On the failure on the part of defendant to comply with its obligations under the contract there was open to the plaintiff two remedies: (1) To await the end of the term of employment contracted for and bring suit for the amount then due, after allowing all just offsets; or (2) he may treat the contract as terminated and sue for damages for the breach. In a suit for a breach of the contract of employment and damages for the breach, it is not necessary to aver in the complaint a readiness and willingness on the part of plaintiff to perform the services throughout the term he bound himself to serve. Marx v. Miller, 134 Ala. 347, 32 So. 765. However, there must be an averment of plaintiff's willingness and ability to perform at the time of the alleged breach. Marx v. Miller, supra; Sloss-Sheffield S. & I. Co. v. Payne, 192 Ala. 69, 68 So. 359. The foregoing is pointedly and definitely decided in the last-cited case and that holding has been approved in the following cases: Roobin v. Grindle, 219 Ala. 417, 122 So. 408; Moss v. Gulf States Steel Corp., 224 Ala. 430, 140 So. 402; Hamilton v. O'Rear, 224 Ala. 625, 141 So. 565; Finklea v. Garrick, 25 Ala. App. 385, 147 So. 677.

The plea in this case was, in short by consent, with leave to give in evidence any matter of defense as if the same had been specially pleaded. This general plea included a plea of accord and satisfaction and around this plea centers the principal contention of the parties.

It is contended on the part of plaintiff that on the 24th day of August, 1932, this defendant, acting through its manager for this state, entered into a contract with him for a term of one year from that date at a stipulated salary of $202.50 per month. The duties of plaintiff under the contract were that of general salesman and inspector of local stations on a designated territory. There was evidence tending to prove this contract. It is without dispute that plaintiff was discharged by defendant on September 30, 1932, without notice or warning. He was simply called to the office of the manager in Birmingham and discharged. There was also evidence tending to prove that plaintiff had been discharged without cause.

There is evidence tending to prove that while plaintiff recognized the discharge and left the service of defendant, he did not consider the matter closed, but contended that he should be paid something by the company, how much was not definitely claimed, but defendant recognized at least a moral obligation by offering to pay plaintiff an amount equal to one-half salary for a period of three months. "Not as salary, but as a special allowance." Plaintiff never agreed to accept the "special allowance" as final settlement of his claim, but he did accept the various amounts aggregating $303.75 and still retains same. On October 19, 1932, defendant's manager at Birmingham wrote plaintiff a letter in which was the following:

"As of September 30, 1932, you were released and your name taken from our pay roll. It was agreed, however, that for period of 3 months, October, November, December 1932, you would be

...