Watkins & Thurman v. Napier

• Decision Date: 08 December 1906
• Parties: WATKINS & THURMAN v. NAPIER.
• Court: Texas Court of Appeals

98 S.W. 904

WATKINS & THURMAN v. NAPIER.

Court of Civil Appeals of Texas.

December 8, 1906.

Rehearing Denied January 5, 1907.

Appeal from Dallas County Court; H. F. Lively, Judge.

Action by W. L. Napier against one Watkins and another. From a judgment in favor of plaintiff, defendants appeal. Reversed and rendered.

Cockrell & Gray and G. C. Hughes, for appellants. Kearby & Kearby and E. C. Gambrell, for appellee.

BOOKHOUT, J.

This case, which was filed on the 29th day of March, 1904, was a suit for the recovery of damages alleged to have accrued to the appellee, W. L. Napier, by virtue of having been discharged by the appellants, Watkins & Thurman, manufacturers of sash and doors, at Madera, Cal., when he had been employed by them for a term of 12 months, beginning December 1, 1903, the said 12 months to be divided into two periods of 6 months each, for the first of which periods the appellee, plaintiff below, was to receive the sum of $500 divided into six equal payments, and for the second period of six months he was to be paid the sum of $700 in like proportionate payments, together with his expenses at the rate of $150 per month. The appellee alleged, in addition to the above, that he entered into the employ of the appellants, defendants below, and that he faithfully, diligently, and successfully served them in the capacity of traveling salesman for the period of three months, at the end of which time he was wrongfully discharged by the appellants and that he had been damaged in the sum of $520 as a result of said wrongful discharge. The defendants below in their pleadings relied first, upon a general demurrer; second, a general denial; third, that the contract between the appellants and the appellee was in writing, and that by the terms of said contract the appellants had the right to discharge the appellee at the end of any month if his services did not prove satisfactory to them, that his services were not satisfactory, and that, therefore, they discharged him, as they had a right to do under the terms of the contract; fourth, that, if it should be held that the appellants had no right to discharge the appellee, then it was his duty to have secured other employment, and that he could have done so by the exercise of reasonable diligence, and that, therefore, he could not recover. The case was submitted to a jury and a verdict was returned for plaintiff for $437.50. Appellee entered a remittitur for $187.50, and judgment followed for $250. Defendants' motion for new trial having been overruled, an appeal was prosecuted to this court.

The defendants below, Watkins & Thurman, were engaged in the business of making sash and doors at Madera, Cal. They received a letter dated November 8, 1903, in which appellee stated to them that he was a traveling salesman and had been such for about three years, giving the names of parties by whom he had been employed and stating the amount that he had been selling for them. He further stated that, if employed by them, he thought he could secure orders for all the goods they could handle, and closed his letter with the proposition that he would work for them for the first six months for $500 and expenses, not to exceed $150 per month; and the second six months for $750 and expenses, with the condition that, if they were dissatisfied at any time with his services, same should be ended at the expiration of any month, salary to be paid each month at the expiration of same, expenses to be furnished semimonthly, and accounts to be rendered weekly, triweekly, or monthly at their option. In reply to this Watkins & Thurman wrote appellee the 21st of November, 1903, that they had decided to employ him upon the terms he suggested; that they asked for no reference from him as his work would tell the tale, and, if satisfactory, they said they saw no reason why he should not have a steady position with them. Further along in their letter, they told him he could commence work at once, terms to be as suggested, $500 for the first period of six months, payable in proportionate payments, expenses not to exceed $150 per month, payable semimonthly, and accounts to be rendered by him as often. To this letter Napier, on November 28, 1903, answered by wire as follows: "Accept proposition, begin work first, send expense check Ft. Worth, letter follows." On the same day he wrote defendants, in which letter he makes the statement as follows: "You state that I may commence work at once, terms to be as per my previous letter, i. e. $500.00 for the first term of six months, payable monthly in proportionate payments, if my work is satisfactory; second term of six months to be $750, payable as per terms of first six months. Expenses not to exceed $150 per month, payable semimonthly, in advance, and accounts rendered as often." On the 26th day of February, 1904, the appellants wired the appellee as follows: "Will not need you after this month. Letter." And on the same day they wrote him that they found it impossible to keep him in the field while the present prices were being maintained, and that he could, therefore, consider his business connection with them severed. The contract is to be determined from the language of this correspondence. It is the contention of appellants that, by the terms of the contract, if at any time they became dissatisfied with appellee's services, they could terminate his employment at the end of any month. The appellee insists that by the terms of the letter of Watkins & Thurman, dated November 21, 1903, he was...