Torson Construction Co. v. Grant
| Decision Date | 15 December 1933 |
| Citation | 251 Ky. 800 |
| Parties | Torson Construction Co. v. Grant. |
| Court | United States State Supreme Court — District of Kentucky |
2. Principal and Agent. — In action for breach of employment contract for one year, employer had burden to allege and prove limitation of authority of its superintendent to enter into contract and notice thereof to employee.
3. Contracts. — Oral employment contract whereby construction company's superintendent agreed to pay $.75 per hour for one year and electric welder agreed to work if he accepted offer, and commenced work next day, held not lacking in mutuality but definite and certain and not terminable at will of parties.
4. Frauds, Statute Of. — Oral employment contract for year where employee began work on day after agreement was made, held not within statute of frauds as contract not performable within year (Ky. Stats., sec. 470).
5. Compromise and Settlement. — Employer's delivery to discharged employee of check marked "paid in full" held no defense to employee's action for breach of employment contract, where words "in full" were intended as evidence of settlement only for amount for which check was made.
6. Master and Servant. — Wrongfully discharged employee is entitled to recover amount equal to agreed wages less whatever he may have earned or with reasonable diligence could have earned in similar employment in locality in which his services were to be performed during remainder of employment period.
7. Master and Servant. — Wrongfully discharged employee who sued for breach of employment contract had burden to prove amount earned or amount he could have earned by reasonable diligence during employment period.
8. Master and Servant. — Wrongfully discharged employee has right to seek same character of employment as that from which he was discharged, and, if he cannot secure similar employment, he is required to use reasonable diligence to secure other employment for which he is reasonably fitted, but he is not bound to mitigate damages by accepting any employment nor to look for or accept employment of substantially different character.
9. Appeal and Error. — Erroneous instruction on measure of damages to wrongfully discharged employee held not prejudicial where if correct instruction were given jury could not have allowed, under evidence, larger verdict (Civil Code of Practice, secs. 134, 338, 759).
10. Appeal and Error. — Judgment will not be reversed on ground of erroneous instructions except where it affirmatively appears that instructions are prejudicial to substantial rights of complaining party (Civil Code of Practice, secs. 134, 338, 759).
Appeal from Jefferson Circuit Court
W.W. DOWNING for appellant.
HUBBARD BROTHERS for appellee.
Affirming.
This appeal requires a review of a trial before a jury of an action involving the breach of a contract of an employer and an employee for the latter's services at an agreed price for the period of one year.
Claude Grant, a resident of Louisville, Ky., about the 1st of July, 1931, was an electric and acetylene welder with 17 or 18 years of experience, and employed by the Lockjoint Pipe Company, working ten hours a day at 75 cents an hour. His job was to continue for about four months. On July 16, 1931, the Torson Construction Company was engaged in work when one of its welders ceased to work for it. Its work required that his place be filled. Leslie Craig was superintendent of the Torson Construction Company, with authority to hire and discharge employees. C.T. Kinsey, an employee of the Torson Construction Company, was a friend of Claude Grant. Through Kinsey, Leslie Craig learned of Grant's qualifications. Craig and Kinsey went to the home of Grant, and on receiving information of his whereabouts, went together to a point on the Ohio river, where Grant, Carter, and Nielson were engaged in fishing, for the purpose of Craig employing Grant for the Torson Construction Company. On arriving at the river's edge, where Grant was, Grant claims that Craig sought to employ him for the Torson Construction Company, when he informed Craig that at that time he was employed by the Lockjoint Pipe Company, making good money and was satisfied with the work and his employer, and was getting along all right, and that his job would last four months, and when he informed Craig the time his job would continue with the Lockjoint Pipe Company, Craig proposed to employ him for the Torson Construction Company for a period of one year at 75 cents per hour. Thereupon, he, Grant, stated to Craig that he would think it over, and, if he decided to take the job, he would "come down in the morning" and go to work; that next morning he decided to accept Craig's proposition, and, after so deciding that morning, he went to the place of business of the Torson Construction Company and began to work on July 17, 1931. He continued to work for the company about a month or six weeks, or until the 5th day of August, when C.M. Torson, a member of the firm of the Torson Construction Company, discharged him. After his discharge he obtained work at intervals with the Lockjoint Pipe Company, AEtna Oil Company, Standard Oil Company, and Ford Motor Company, and earned by his services for them, $770.50, between the date he was discharged and the 17th day of July, 1932. His earnings per the contract of the Torson Construction Company, except for his discharge, would have amounted to $2,212.50 for the balance of the period of his contract. At the time it discharged him, the Torson Construction Company issued and delivered to him a check dated July 24th for 62 hours, at 75 cents per hour, on which was written the words, "in full."
After the expiration of the year, Grant brought this suit to recover the $2,212.50, the difference between the contract compensation and the amount he had earned from the date of his discharge to the date of the expiration of the contract, alleging that his contract began on the 17th day of July, 1931, and expired on the 17th day of July, 1932. The answer of the Torson Construction Company contains a denial and an affirmation that, under the contract of employment of Grant, it was privileged to terminate the employment at any time and also that Grant had the privilege of abandoning it.
On a trial with the intervention of the jury, a judgment was rendered in favor of Grant for $731. For reversal the Torson Construction Company insists that the intention of the parties to the contract of employment was that Grant was employed for no definite period; that the contract lacks mutuality; that the employer had the right to terminate it if the services of Grant were not satisfactory; that the contract was to begin at a future date and run one year, and, since it was not in writing, it is within the statutes of frauds (Ky. Stats., sec. 470); that the acceptance of the check, with the words "in full" marked thereon, is conclusive evidence of a settlement of the claim now asserted by Grant; that the superintendent was without authority to make the contract and the instructions of the court are erroneous.
Grant's narration of the conversation between him and Craig, at the time Grant claims they agreed on the terms of the contract, the period for which it was to run, and the privilege of Grant later determining whether he would accept the employment, is corroborated by the testimony of Carter and Nielson. It is contradicted by that of Craig and Kinsey. Such conflicting evidence as to the contract, its terms, and conditions and the period of time for which he was employed, made an issue as to the same for the jury. Ross v. Eagle Coal Co., 237 Ky. 660, 36 S.W. (2d) 48. Torson and Craig admitted that Craig was superintendent of the company with authority to hire and discharge employees. But they declare that he was without authority to make the contract with Grant for his services for a period of one year. The limitation of the authority of Craig to make the contract for a period of one year is not set forth in the answer as a defense. Even though the answer presented as a defense the limitation of Craig's authority, it was not attempted to be shown that Grant had information of such...
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