Mallonee v. Duff

Bryan, J., delivered the opinion of the Court. The evidence for the plaintiff (now appellee) tended to prove that under a verbal contract with the defendant, he was to cut, trim and set all the stonework on seventeen houses for the sum of $3225, which the defendant promised to pay in weekly instalments as the work progressed, and that the defendant wrongfully ²⁸⁶ stopped him in his work and refused to allow him to proceed with the performance of his contract, although he was ready and willing and able to perform it ; that at the time the defendant stopped the work, the plaintiff had completed about two-thirds of it and had been paid $1211.50. The evidence for the defendant tended to prove that he agreed to pay the plaintiff every Saturday, as the work progressed, enough money to pay the wages of the plaintiff and his men, and all the expense of tool-sharpening; and the balance of the sum of $3225 when the work was completed ; and further, that after the commencement of the work the plaintiff agreed that if he got drunk and neglected his work for a day, or part of a day, he would give up the contract and defendant might discharge him ; that plaintiff having gotten drunk and neglected his work, the defendant discharged him ; that at the time of the discharge he had been paid more than the expenses and wages stipulated to be paid weekly. Most of this testimony seems to have been given by the defendant, and by Smith-, his foreman.

The plaintiff offered evidence tending to prove that he had not been drunk and had not neglected his work, and that he had never agreed with the defendant that he would abandon the contract if he became intoxicated. Defendant then offered to corroborate his own testimony and that of Smith by proving by Hanes that he, the defendant, and Smith had made the same statements to him, Hanes, during the progress of the work, and before the plaintiff's discharge, as they had made at the trial in reference to the plaintiff's drunkenness and neglect of the work ; and that the defendant told Hanes the day before the plaintiff was discharged, that' the plaintiff had agreed that the contract should be at an end if he got drunk again. The Court refused to- admit in evidence either the statement made by the defendant, or the statement made by Smith, and the defendant ²⁸⁷ excepted. The evidence offered in behalf of the defendant was assailed in two particulars; it was controverted that an agreement had been made by the plaintiff to terminate the contract if he got drunk and neglected the work; and secondly it was denied that he had gotten drunk and