Shields v. Carson , 1902 Ill. App. LEXIS 469 ( 1902 )

Mr. Justice Adams

delivered the opinion of the court.

On the receipt by appellee of appellant’s letter of May 16, 1894, notifying hitn, in substance, that appellant would no longer do business with him, one of two courses was open to appellee, namely, either to treat the notice of his discharge from appellant’s employ as inoperative and hold himself ready and willing to perform his part of the contract, or to treat appellant’s notice as a breach of the contract and sue for damages for such breach. Frost v. Knight, 7 L. R. Exc. 111; Johnstone v. Milling, 16 Q. B. Div. 460; Roehm v. Horst, 178 U. S. 1; Hamlin v. Race, 78 Ill. 422; Mount Hope Cemetery v. Weidenmann, 139 Ill. 67; Foss, etc., Brewing Co. v. Bullock, 59 Fed. Rep. 83; 71 Ill. App. 638.

In Frost v. Knight, supra, the court say :

“ The promisee, if he pleases, may treat the notice of intention as inoperative and await the time when the contract is to be executed and then hold the other party responsible for all the consequences of non-performance. But in that case he keeps the contract alive for the benefit of the other party as ivell as his own. He remains subject to all his own obligations and liabilities under it and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it, and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.”

This is quoted with approval in Roehm v. Horst, supra.

In Johnstone v. Milling, 16 Q. B. Div. 467, this language is used:

“ It would seem on principle that the declaration of such intention by the promisor is not in itself, and unless acted upon by the promisee, a breach of the contract; and that it only becomes a breach when it is converted by force of what follows into a wrongful renunciation of the contract. Its real operation appears to be to give the promisee the right of electing either to treat the declaration as a brutum, fubnen and, holding fast to the contract, to wait till the time for its performance has arrived, or to act upon it and treat it as a final assertion by the promisor that he is no longer bound by the contract, and a wrongful renunciation of the contractual relation into which he has entered. But such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect it becomes * a breach of contract, and he can recover upon it as such.”

In Foss-Schneider Brewing Co. v. Bullock et al., 59 Fed. Rep. 83, the following occurs:

“ It is true that where a contracting party gives notice of his intention not to comply with the obligation of the contract, the other contracting party may accept this as an anticipatory breach of the contract, and sue for damages without waiting until the time mentioned for the completion and fulfillment of the contract by its terms; but in order to enable the latter to sue on such an anticipatory breach, he must accept it as such and consider’ the contract at an end. If he elects to consider the contract still in force he can not recover thereafter without performing all the conditions of the contract by him to be performed. These principles are well settled and there are decisions by the Supreme Court of the United States which leave no doubt upon the subject.” (Citing cases.)

The question is very fully discussed and numerous authorities cited in Roehm v. Horst, supra.

The record is conclusive that appellee elected to consider and' treat the contract as in force, and the declaration of appellant’s intention as inoperative. This is apparent from appellee’s letters of May 17th and 24th and June 30,1S94, set forth in the preceding statement. Having elected to treat appellant’s notice as inoperative, and the contract as in force notwithstanding the notice, appellee remained subject to all its obligations, precisely as if the notice had not been given. Frost v. Knight, supra.

“ An obligation of the servant to obey all reasonable commands of "the master, is implied from the contract of employment (Wood’s Law of Master and Servant, p. 166, Sec. 83), and a refusal or neglect on the part of a servant to obey a lawful and reasonable command of the master, which, in view of all the circumstances, amounts to insubordination, and is inconsistent with his duties to his master, is a good ground for his discharge.” Ib. p. 223, Sec. 116; 20 Am. & Eng. Ency., 2d Ed., p. 30; Spain v. Arnott, 2 Starkie’s R. 256; Hamlin v. Race, 78 Ill. 422.

In the case last cited the Supreme Court say:

“ All will concede that an employe must be respectful and obedient to all reasonable commands of his employer and those having control of the business in which he is employed, and no one will dispute that a person so employed, when engaged in the discharge of his business, and in his intercourse with customers and persons transacting business with the house and with his employers, and those having charge of the business, must be respectful and must abstain from all vulgarity and obscenity of language and conduct. If wanting in any of these requirements, it would be ground for discharging a . salesman in a store from his. employment.”

A discharge for disobedience of a reasonable order will defeat a recovery for salary for the unexpired term. Harrington v. First Nat. Bank, 1 N. Y. Sup. Ct. R. 361.

A voluntary refusal of the servant to perform his contract operates as a forfeiture of wages or salary. Lawrence v. Gulliber, 38 Me. 532.

Appellant, in his letter to appellee of May 16, 1894, requested appellee to return appellant’s samples, Avhich appellee had. In appellee’s letter of May 17, 1894, he substantially refused to return the samples. June 1, 1894, appellant again wrote to appellee, saying, among other things: “We again demand return of our samples.” Subsequently, June 6th, 20th and 27th, appellee wrote to appellant, ignoring appellant’s request to return the samples, and finally, June 30, 1894, for the first time offered to return them if appellant would send a memorandum of them. It was then too late for appellant to use them, as he had been compelled by appellee’s delay to duplicate them for use in his business. Appellee purported to act exclusively for appellant in selling a line of men’s neckwear, and it is difficult, if not impossible, to understand why he wanted a memorandum from appellant of samples which he had in his possession. The effect of appellee’s continued and persistent refusal to return the samples, is to be determined with reference to appellee’s own theory, that the contract, notwithstanding appellant’s notice of May 13th, was in full force; in other words, as if that notice had never been given, and neither party had desired a rescission of the contract or contemplated its abandonment. Appellee was employed on a salary. He had no pecuniary interest in the samples. They belonged to appellant, his employer. Their return when demanded, could not, in the least, have affected appellee’s rights, and the request of the appellant for their return was reasonable and lawful, was a request which the appellant had the right to make, and which appellee had no right to refuse. We think it clear that if, prior to appellant’s request for the return of the samples, there had been no disagreement between the parties, and that both of them at the time of the request were contemplating the contract as in full force, appellee’s refusal to return the samples would have been good ground for his discharge; and if good ground for discharge on the theory of appellee that the contract was in force, it is sufficient ground to defeat a recovery for salary for the part of the year which remained after appellee’s refusal. Appellee refused, May 17,1894, to return the samples, and adhered to his refusal until they were valueless to appellant. He was paid his salary of $100 per month for the months of January, February and March. The value of the samples retained by him was, as shown by the evidence and not controverted, $250—enough to pay his salary for the months of April, May and the half of June. We are of opinion that appellee, by reason of his refusal to return the samples, is not entitled to recover anything. We are not prepared, however, to hold that the finding of the court that the discharge was wrongful, is manifestly against the evidence.

The judgment will be reversed.