Warden v. Hinds

• Decision Date: 17 July 1908
• Docket Number: 786.
• Citation: 163 F. 201
• Parties: WARDEN v. HINDS.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F. 201

WARDEN v. HINDS.

No. 786.

United States Court of Appeals, Fourth Circuit.

July 17, 1908

W. D Carter and Robert H. Talley, for plaintiff in error.

Scott &amp Buchanan, for defendant in error.

Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

BOYD District Judge.

In this case, Nellie R. Hinds, the defendant in error, who was the plaintiff below, and who will hereafter be called the plaintiff, brought a suit at law in the Circuit Court of the United States for the Eastern District of Virginia, at Richmond, against Henry Warden, the plaintiff in error, who was the defendant below, and who will hereafter be called the defendant. The plaintiff filed her declaration in trespass on the case in assumpsit and sought to recover of the defendant damages in the sum of $15,000 for breach of contract of employment. The plaintiff alleged, in substance: That in the month of April, 1904, the defendant, who was then 48 years of age, and who was engaged in business in the city of Fredericksburg, Va., desired the services of the plaintiff as an amanuensis, stenographer, and typewriter, and induced the plaintiff to give up a lucrative business in the city of Philadelphia and accept employment with the defendant at the compensation of $25 per week, beginning on the 18th day of April, 1904; that said employment was to continue as long as the defendant lived, and at his death there was to be paid from his estate to the plaintiff the sum of $5,000. The written evidence of the contract, as set out in the record is the following letter:

'Fredericksburg Va., 4, 17, 1904.

'Miss N. R. Hinds, No. 667 Bourse Building, Phila.-- Dear Madam: I wish to conclude the arrangement we talked about on Friday, and you can consider yourself in my employ from the moment you receive this letter. Your salary of twenty-five dollars per week will begin from to-morrow and you are to report here at the earliest possible moment. In consideration of the fact that, in entering my employ, you are giving up an established business of greater or less value (its value to you being indicated by the salary I have agreed to give you) it is my intention to add a codicil to my will bequeathing to you the sum of five thousand dollars, this to recompense you for the above business and to enable you to re-establish yourself, should I die within the next few years.

It is my intention, even should I live to a good old age, that this bequest shall stand and be in force.

'Hoping that you will be able to report for work in a very few days, I am

Yours sincerely,

(Signed) Henry Warden.'

The plaintiff entered the employment of defendant under this contract and continued in his service until the 16th day of April, 1905, when defendant discharged her, as she alleges, without cause, and she brought this suit. The defendant, through his counsel, filed his plea of nonassumpsit in the usual form and thus raised the issue. The cause was tried at Richmond, in said district, beginning on the 16th day of October, 1907, and a verdict rendered for plaintiff in the sum of $2,478.05. Judgment was accordingly entered thereon by the court, and defendant sued out his writ of error from this court. At the close of the testimony, the defendant requested the court to charge the jury that plaintiff was not entitled to recover and to direct a verdict for the defendant. This request was refused, and the defendant excepted. The court, in the instructions to the jury, held that the contract contained in the letter of April 17, 1904, set out in the declaration, was a binding contract consummated between the parties and constituted a general hiring to do and perform the services contracted for; that it was a hiring without fixing the duration of service and was presumed to be a hiring for a year, one revolution of the seasons. The defendant's counsel duly excepted to this instruction. The court further instructed the jury:

'You are further charged that if you believe from the evidence that the defendant wrote the plaintiff the letter of 17th of April, 1904, which letter concluded the contract of employment between them, and one of the provisions of which is as follows: 'In consideration of the fact that in entering my employ you are giving up an established business of greater or less value (its value to you being indicated by the salary I have agreed to give you) it is my intention to add a codicil to my will bequeathing to you the sum of $5,000, this to recompense you for the above business, and to enable you to re-establish yourself should I die within the next few years. It is my intention, however, even should I live to a good old age, that this bequest shall stand and be in force'-- and that the plaintiff, in accepting the said contract and entering upon said employment, gave up an established business in the city of Philadelphia, such as was mentioned in the provisions of the said contract, and moved to the city of Fredericksburg, and there entered upon the service called for in said letter, and faithfully performed all of the duties required of her in the premises, and that the defendant thereafter and without justifiable cause discharged the plaintiff from said employment, and repudiated the arrangement to make provision for her as thus contemplated, by said codicil, then the undertaking to make such provision by adding a codicil to his will constituted a binding contract upon him properly enforceable in equity against his estate, or for the breach of which damages can be recovered at law against him in his lifetime.'

To this instruction defendant's counsel then and there duly excepted. The defendant's counsel requested, among others, the following instructions, both of which were refused by the court, and to the refusal to give each of which the defendant's counsel duly excepted:

'The jury is charged that under the evidence in this case there is no definite period fixed for the duration of the employment of the plaintiff by the defendant, and therefore the same is merely a contract at will, terminable by either party at any time without notice, and no liability rests upon the defendant to pay the plaintiff any salary subsequent to her discharge on July 15, 1905.

'The court charges the jury that the expression by the defendant in this case to the plaintiff of an intention to add a codicil to his will bequeathing money to the plaintiff, though conclusively proven and subsequently repudiated by the defendant, does not render the defendant liable in any amount whatever to the plaintiff in damages, and no damages can therefore be awarded the plaintiff to compensate her for any alleged loss growing out of the failure, or refusal of the defendant to execute such codicil.'

The jury returned a verdict in favor of the plaintiff against the defendant, assessing plaintiff's damages in the sum of $2,478.05, and for this amount the court rendered judgment, with interest on the amount of $2,478.05, from the date of the trial, and for costs. In the course of the trial there were other exceptions than those above stated, taken by defendant's counsel; but the exceptions presented by the instructions which the court gave and the exceptions based upon the instructions refused are those alone which we deem it necessary to consider in order to dispose of this case.

We do not think that the terms of employment, as set forth in the letter written by defendant to plaintiff on the 17th of April, 1904, can be construed into a contract from year to year. The duration of employment is altogether indefinite. The compensation was $25 per week, and there was no fixed period for plaintiff's service to the defendant. Under these circumstances, it is our conclusion that the contract should be construed as a hiring at will, which could be ended at any time by either party without notice. We do not think it necessary to cite authorities to sustain this view of the contract, so far as the duration of employment is concerned further than to refer to a case recently decided by this court, The Pokanoket, 156 F. 241, 84 C.C.A. 49. We think therefore there was error in the instruction that, under the contract...