Texas Brewing Co. v. Walters

• Court: Texas Court of Appeals
• Writing for the Court: Stephens
• Citation: Texas Brewing Co. v. Walters, 43 S.W. 548 (Tex. App. 1897)
• Decision Date: 27 November 1897
• Parties: TEXAS BREWING CO. v. WALTERS.

43 S.W. 548

TEXAS BREWING CO. v. WALTERS.

Court of Civil Appeals of Texas.

November 27, 1897.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by George Walters against the Texas Brewing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Sawyers, for appellant. John W. Wray, for appellee.

Conclusions.

STEPHENS, J.

Appellee entered the service of appellant company as brew master about the 27th day of December, 1890 (though his term of employment seems to have dated from the 15th day of December, 1890), and remained in that service until April 12, 1895, when he was discharged; the letter of dismissal reading: "Fort Worth, Texas, April 12, 1895. Mr. Geo. Walters, City—Dear Sir: Having been a director of this company for the past two years, you are doubtless fully familiar with the affairs, which render retrenchment in every direction an imperative necessity, if unpleasant results are to be averted. Acting on this line of general reduction of expense, the directory of this company has decided to employ but one brew master in the future, and, at a meeting held yesterday, appointed Mr. Chas. H. Ringler to fill that position. You are therefore notified that from and after May 1, 1895, your services will be no longer required. Mr. Ringler assumes charge under date of to-day. Yours, very truly, Texas Brewing Co., Zane Cetti, Pres." Accepting this letter as a discharge from its date, he at once quit the service, and, failing to find other employment, recovered damages for the rest of the year, up to December 15th, at the rate of $3,600 per annum, which was shown to have been at least the reasonable value of his services, as well as the price paid him for like services rendered during the preceding years. His chief contention, as appears both from his pleadings and his testimony (first admitted, and then excluded), was that in October, 1890, he had engaged himself to appellant, as brew master, for a term of five years, beginning December 15, 1890, at $3,000 for the first year, $3,500 for the second, $4,000 for the third, $4,500 for the fourth, and $5,000 for the fifth year. Against this contract the appellant pleaded the statute of frauds, and also objected upon that ground to the introduction of evidence to prove the contract. This objection was overruled, and the evidence admitted, but in the charge the court instructed the jury to entirely exclude the evidence from their consideration. From the evidence not so excluded, but one deduction remained, and that was that appellee, when discharged, had entered upon another year's service, just as he had entered upon the last three preceding. It seems perfectly clear from the record so restricted, and a finding to the contrary would not be sustained, that appellee, though his salary was paid in monthly installments, was engaged in serving appellant by the year, and not by the month; the managing officer of the company testifying that appellee's years began on the 15th day of December. Exclude, then, the evidence of the oral contract made in October, 1890, and nothing is left in the record, except the bare fact of monthly payment, to even suggest a hiring other than by the year. It would seem to be unreasonable that a brew master would engage himself for so short a period as a month, the employment being in its nature permanent. Besides, it is manifest that appellee immigrated to this state, upon the invitation of the appellant company, solely for the purpose of such employment; it having just established its brewery in Ft. Worth. If, however, the proof of the oral contract had not been excluded, it might have been deemed sufficient by the jury to rebut the inference otherwise obtaining of a hiring by the year, in that they might have ascribed his continuance in the service after December 15, 1895, to the original employment for a period of five years, made before that period began, which, it seems, would have brought the case within the statute of frauds. Moody v. Jones (Tex. Civ. App.) 37 S. W. 379. However, there was evidence tending to show a hiring by the year, notwithstanding the original contract of employment testified to by appellee, in that after the expiration of the first year a uniform salary of $3,600 per year seems to have been substituted by mutual consent for the original contract, from which, and other circumstances, it might be argued that the original contract had been abandoned, or practically interpreted as a yearly hiring. For an instructive discussion of what will justify an inference of a yearly hiring, see the New York case of Adams v. Fitzpatrick (N. Y. App.) 26 N. E. 144. Be this as it may, it seems to us that the error in admitting the evidence in the first instance, over the objection of appellant, was not to its prejudice; but on the contrary, in order to sustain its defense, the appellant should, so far from objecting to the evidence, have insisted upon its introduction. True, in most cases, where the petition does not disclose that the contract declared on comes within the statute, it might be sufficient to interpose the defense by objecting to the evidence, and thus preventing the plaintiff from making out his case. But the case at bar, as already seen, is a peculiar one,—so much so that appellant, in order to avail itself of the statute, was under the necessity both of pleading and proving a contract in violation of it; the pleadings of appellee not disclosing that the contract was oral. This defense must always, in some form, be specially interposed; and where, from the manner of alleging the cause of action on the part of the plaintiff, this cannot be done by exception to the petition, and where, as in the...