Dorrance v. Hoopes

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment entered on a verdict rendered in favor of tho appellee (plaintiff) against the appellant (defendant). The declaration originally contained seven common counts and was afterwards amended by adding an eighth count. A demurrer to it having been sustained, the first seven counts were stricken out and the eighth, as amended by interlineations, was refiled.

That count is on an agreement under seal, by which the appellant agreed to hire the appellee for eleven months' — -from the first day of April, ³⁴⁶ 1912, to the last day of February, 1913, inclusive, for $60 per month, to be paid in cash bi-monthly, and in addition appellant was to furnish appellee a dwelling house, garden, fire wood, feed for one cow, and the right to the use of a horse for driving at times to be agreed upon between the parties. The appellee was employed to do general farm work under the direction of the appellant, and in the absence of the latter he was to exercise supervision over the work on the farms, also to supervise and assist in the care of the orchard and the trimming and spraying thereof, and to do other necessary work in connection therewith. He was also to do such other work on the farms named in the agreement as might be suggested by the appellant. The narr. alleges that the plaintiff entered upon the service and so continued until the defendant, before the expiration of the eleven months, dismissed him from his service, and refused to retain him for the remainder of said lime; whereby he was deprived of the wages, profits and privileges which he would have derived, except $25 per month, which he had been able to earn elsewhere.

The plaintiff offered three prayers and the defendant two, all of which were refused. The only exceptions in the record are to the refusal of the lower Court to grant the defendant’s two prayers and to pass upon his special exception to the plaintiff’s first prayer, but as the Court rejected the plaintiff’s prayer, that special exception is immaterial. As all of the prayers were rejected, the case went to the jury without any instructions by the Court, but while that is to be regretted and is not a desirable practice, especially in cases of this kind, we are only called upon to determine whether there was reversible error in rejecting the defendant’s prayers, which are as follows: Defendant’s First Prayer. — “If the jury find that the plaintiff was employed by the defendant under the contract of May 1st, 1912, offered in evidence, then it became and was the duty of the plaintiff to obey all reasonable orders of the defendant, and to be loyal to, protect and safeguard the inter ³⁴⁷ ests of the defendant in every reasonable way, and if the jury find that a difference arose between the defendant and the plaintiff, over the services of the plaintiff at the instance of the defendant to Joseph T. Hoopes, the father of the plaintiff, in the use of a sprayer for apple trees, and over the use of said sprayer and the bill for repairs thereto, and the plaintiff took the side of his father in said controversy and tried to force defendant to pay the bill for repairs to said sprayer presented by the said Joseph, and told the defendant he would believe the said Joseph in preference to believing the defendant in reference to said bill for repairs, and the defendant thereupon dischax’ged the plaixxtiff and paid him up to the date of his discharge, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must be in favor of the defendant.” Defendant's Second Prayer. — “If the jury find that the plaintiff was employed by the defendant under the contract of May 1st, 1912, offered in evidence, and that the plaintiff wox*ked under said contract until July 8th, 1912, and that on or about said last named date differences arose between the defendant and the plaintiff growing out of the services of the plaintiff to Joseph T. Hoopes, the father of the plaintiff, the use of a sprayer for apple trees and the repairs thereto, and on said date the plaintiff brought up the question of the defendant’s paying for said repairs, and insisted that the defexxdant should pay the saxne for the relief of said Joseph, axxd the defendant then and there declined to pay the same becaxxse not according to agreement, but the plaixxtiff insisted that the defendant shoxxld pay the same, and said he, the plaintiff, would believe the said Joseph in prefex'ence to the defendaxxt, whereupoxx the defendant discharged the plaintiff and paid him his wages to the date of said disclxax'ge, then the plaintiff is not entitled to recover, and the verdict of the juxw must be in favor of the defendant.” The oxxly testimony in the case which tended in any way to question the faithful peiffoxinanee of the contract by the plaintiff, in respect to the manner and character of his work, ³⁴⁸ was that of the defendant himself. As the prayers offered do not rely on that, and as that was unquestionably for the jury and not for the Court to determine, we do not deem it necessary to refer to it further than to say that there was ample evidence tending to show that the plaintiff was competent and attentive to his duties.

The defendant’s testimony as .well as that of the plaintiff and his father showed that the work done by the plaintiff on his father’s orchard was by virtue of the contract between the defendant and Mr. Hoopes, Sr., and there was no dispute or difference between the plaintiff and the defendant on that subject. The question in dispute was' whether the defendant or Mr. Hoopes, Sr., was to pay for the repairs of the sprayer. The defendant claimed that he was not to pay for them, while Mr. Hoopes, Sr., claimed that he had agreed to do so. The plaintiff bought some hose for the sprayer which the defendant paid for, apparently without objection.

Later the plaintiff purchased some materials for repairs to the sprayer amounting to $11.23, which were charged to the plaintiff by the people in Boehester who furnished them. The dispute arose about those repairs. The plaintiff presented the bill for them to the defendant in June, but he declined to pay for them, and the plaintiff had promised the parties who furnished them that he would pay for them on July 10th. On July 9th he asked the defendant for some money which was due him for wages, as he said he did not have any, and could not pay the people in Boehester for the repairs unless he could obtain the money from the defendant.

His testimony in the record is then as follows: “Besides that, I didn’t feel it was my place to pay that bill; I got it for repairs to the sprayer that we would need to have to do the spraying properly.. He said he liad nothing to do with tha/t; that was my father’s place to settle that bill, that he had paid for the hose at Forest Hill and he thought that was enough. He hadn’t paid for the hose. Q. He was charged with it, /wasn’t he ?

A. Yes, sir. Q. Go on. A. I told him I understood and believed he agreed to settle the account. He says, 'You mean I am a liar ³⁴⁹ them’ I says, ‘I would take my father’s word in preference to yours any time.’ ‘You are too Gf......d......smart; you can go hunt another job; I will settle with you.’ That is all that was said.

I didn’t reply to him.” That is the plaintiffs version of the dispute which resulted in his discharge. The defendant was asked: “When you explained to Mr. Hoopes this morning your position with reference to those bills, what did he say?” and replied: “He said, I would rather believe my father than you.’ I said, ‘Do you mean to say I am lying to you?’ ‘Well,’ he said, ‘I would rather believe him than you,’ in a surly way. I said, ‘You can look for another job.’ ” On cross-examination he said, “I discharged him because he called me a liar. Q. He didn’t call you a liar ?

A. He did — the same thing,” and later said, “I discharged him because he was insolent to me,, intimated I was lying about his old sprayer. Q. Didn’t you intimate his father was lying? A. Wait until I get through — I discharged him because he was incompetent and not on the job. He professed to be in the orchard business, and he didn’t know any more about it than I do, and I don’t know anything about it.” Mrs. Dorrance, the wife of the defendant, testified in substance to the same effect as her husband as to what occurred at that time.

Mr. Ray Thompson, who was the only disinterested witness present testified that “the plaintiff gave the bills to‘the defendant and defendant said he had nothing to do with them; that plaintiff told defendant that he had and said, ‘Father says you did.’ When the defendant said he had nothing to do with them, the plaintiff told defendant that he would believe his father before he would believe defendant; that defendant then said, ‘You call me a liar, do you;’ that there was some swearing after that, and defendant said, ‘I will settle with you today, and you can look for another job.’ ” Inasmuch as the main ground relied upon by the defendant for his right to discharge the plaintiff was what took place on July 9th, we have thus referred, somewhat at length, to the testimony of the witness who was present. It is, of course, conceded that although there is an agreement ³⁵⁰ employing a servant for a definite period, he may be discharged by the master before the expiration of that period for sufficient cause. "What is a sufficient cause has been before the courts of England and this country frequently, and without attempting to state all of the obligations that arise out of and are implied from the relation created by such a contract, it is well settled that “It is only for breaches of an express or implied condition of the contract that either party can put an