Cumberland & Pennsylvania Rail Road v. Slack

Bartol, O. J., delivered the opinion of the Court. This is an action of assumpsit brought hy the appellant against the appellee. The declaration contains a count “for money had and received” and a count “on an account stated; ’ ’ filed with the declaration was a bill of particulars, showing the nature of the plaintiff’s demands. The defendant pleaded 1st, never indebted; 2nd, “payment;” 3rd and 4th, “ Set-off,” with a bill of particulars showing the set-off claimed.

Then follows a protracted course of pleading on both sides ; which, as some questions have been raised thereon, will be more particularly noted hereafter; first adverting to “the facts out of which the controversy has arisen, and the substantial questions presented hy the appeal. It appears that the appellant employed the appellee as “the G-eneral Superintendent” of its railroads, in 1854. His employment was by the year, commencing for each year, on the 1st day of January and'ending on the 31st day of December. He was so employed for the year 1874 at the annual salary of $5000, payable monthly, and continued so employed till the evening of the 9th of April, 1874; when, as he alleges, he was wrongfully discharged, ¹⁷³ and hence he claims a set-off.

This the appellant denies, insisting first that he resigned voluntarily, and secondly if discharged, that there was sufficient cause to justify the company in dismissing him. At the time he left the service of the company he had in hand $700, received by him for the company, which he retained, and there was a deficiency or balance of $953.61 due the company from one of the agents named BerJeebill, for which the appellant seeks to hold him responsible. These two sums making an aggregate of $1653.61 constitute the amount for which the suit was brought, as stated in the appellant’s bill of particulars. The salary of the appellee was paid for the months of January, February and March 1874 — viz., $1250, which added to the sum of $700, retained by him, makes $1950, and this deducted from $5000, the salary for the year to which he claims to be entitled, leaves a balance of $3050, and this constitutes his claim by way of set-off.

There being' no question or dispute, with regard to his employment for the year 1874 at the salary before stated ; the questions presented for our consideration are 1st. Was he discharged, or did he resign voluntarily? 2nd. If discharged, was the discharge illegal and without sufficient cause ? The first question is raised by the fourth replication to th & fourth plea, wherein it is alleged that “the defendant on the 10th day of April 1874, resigned his position as General Superintendent, and refused further to perform the duties thereof.” The evidence on this subject is the following letter addressed to the appellee by the President of the company : “New York, April 8th, 1874. “0.

Slack, Esq. Supt. Mount Savage: “Dr. Sir, I am satisfied that the interests of this company require a reorganization of its local management, ¹⁷⁴ by the concentration of its affairs in Allegany Co. under one head. Accordingly, I -write hy to-day’s mail to the 2d.

Y. Prest, to assume charge of the rail-road. Recent circumstances have confirmed the opinion above expressed. I presume you "will prefer to retire hy means of a resignation. It is hereby understood that the same is accepted, and you will please telegraph me of its transmission, as I have instructed the 2nd Y. Prest, to take entire charge of the rail-road immediately on receipt of my letter.

Please confer with Mr. Millholland in turning over the papers in the Supt. office. “Yours Respty, “Allen Campbell, Prest.” ■ This letter was received hy the appellee on the 9th of April 1874, he went immediately to the office of Mr. Millholland, the 2nd Y. Prest, and showed him the letter. He told the appellee that he had just received a copy of it from Mr. Campbell, inclosed in a letter written to him by Mr. Campbell, instructing him to assume and take charge of the railroads, and the office of the appellee, and the hooks and papers belonging to the office. The appellee further states in his testimony, “ I at once, acted in accordance with the terms of Mr. Campbell's letter, hy surrendering at once to Mr. Millholland the entire charge and control of everything. I at once left the service of the company, which was in the evening of the 9th of April 1874, and I never performed any duties, or gave any orders after that time.

Mr. Millholland took immediate charge of everything, I had nothing to do with the affairs of the road, after that time.” On the next day the appellee addressed the following note to Mr. Campbell, Prest.: ¹⁷⁵ “Mount Savage, Md., April 10, 1874. “Allen Campbell, Esq. “Dear Sir. — I hereby resign the position of Gen’l Supt. of the Cumberland and Penna. Rail-road Co. and branch roads, to take effect at once. Tours truly, C. Slack.” The appellee states in his testimony, that he “ wrote this-note-because he was ordered to' do it in Mr. Campbell’s letter, dated 8th of April 1874.” In our opinion that letter operated as a positive and peremptory dismissal of the appellee from the service of the companyhis note written the next day cannot change its character or construction, it does not show that he voluntarily resigned, nor can it be construed as acquiescing in his dismissal. He had surrendered the office the day before, in obedience to what he properly understood to be Mr. Campbell’s orders, and Mr. Millholland had already •assumed full charge of. the same.

So that when his note of April 10th was written, he had in fact no office to resign. Construing these papers in the light of all the circumstances, it seems impossible to escape the conclusion thatthe appellee correctly understood Mr. Campbell’s letter as a positive and final discharge, leaving him no option or choice in the matter; and therefore the ninth and tenth prayers of the appellant were properly refused. . 2nd. Had the appellant legal cause for discharging the appellee ? • 'In the sixth replication to the fourth plea two causes are alleged in justification of the discharge. 1st. That the appellee after his employment became and was accustomed to be intoxicated, and thereby became unfit for the performance of the duties required of him as Superintendent, &c.

There is no evidence in the cause to support this averment ; it appears by the first bill of exceptions, that after ¹⁷⁶ the appellant’s witnesses had all been examined, and its attorney had announced to the Court that it closed its case, and after the testimony of the appellee had been given, and the case on his part had also been closed, that the appellant then called Mr. Millholland, a witness who had already been on the stand and had been examined for the appellant in chief, and proposed to prove by him the alleged intoxication of the appellee. Objection being made to the offer of the testimony at that stage of the case, it was excluded, and we think very properly. The onus was upon the plaintiff, and the rule is well settled that “being entitled to begin and reply, and having begun it is not permitted to go into half of its case and reserve the remainder, but is obliged to develop the whole.” 1 Greenleaf Ev., sec. 74, and cases cit§d in note 3. The effect of a different rule would be needlessly to protract trials at nisi prius, or make them interminable.

But the question of admitting the testimony when offered, was' in the discretion of the Circuit Court, not reviewable on appeal. Williams vs. Brailsford, 25 Md., 127 ; Bannon vs. Warfield, 42 Md., 39 . 2nd. As further cause for the discharge of the appellee, it is alleged in the sixth replication to the fourth plea, that the defendant failed to discharge his duty in not collecting the balance or deficiency due the company .from the agent Berkebill, and in