Hamill v. Foute ( 1879 )

Bartol, C. J.,

delivered the opinion of the Court.

The appellants were manufacturers and sellers of Britannia and silver plated ware in the City of Baltimore.

By a written contract dated the 10th day of May, 1877, made by them with the appellee, they agreed to employ him as their travelling agent and salesman, for the term of twelve months, accounting from the date of the contract, upon the terms stated in the written agreement (ante p. 420.) The appellee entered upon the performance of his duties under the contract, made one trip through the Southern States, which occupied about nine weeks. On his return in July 1877, the appellants not being satisfied with the results of his trip, refused to continue him longer in their employ as travelling agent and salesman; and this suit was brought to recover damages for the alleged breach of the contract by the appellants.

After the evidence on both sides had been given, three prayers were offered on the part of the appellee, all of which were granted; and the appellants asked four prayers, of which the second Avas granted and the others refused; they excepted, and the verdict and judgment being against them, have appealed.

The questions for our consideration arise upon the prayers.

Those offered by the defendants which were rejected will first be considered. 1st. Their first prayer asserts the proposition, that under the written contract, the defendants Avere not required to keep the plaintiff travelling for the Avhole period of twelve months, but only for so much of said time and for such seasons as the defendants might determine, and that the defendants were not required to pay the expenses of board and living for the plaintiff, except whilst he was actually engaged in travel-ling as their agent and salesman. This prayer we think is based upon a misconstruction of the contract. The employment was for twelve months, and the obligation of the defendants was to pay for that period the sum of $8 per week, and the travelling expenses of the plaintiff. The contract contains no stipulation reserving to the defendants the right to suspend or discontinue at pleasure, the employment of the plaintiff in the business in which he was engaged; nor is there any stipulation that the compensation agreed on shall be suspended or changed in whole or in part during the period embraced in the contract. This compensation as fixed by the contract was $8 per week and the plaintiff’s travelling expenses, which last embraced the cost of his board as well as the cost of his transportation, such as fare on the railways, &c. These last expenses would not of course be incurred, when the plaintiff was not actually travelling; but his board bills the defendants were bound to pay for the whole period of time mentioned in the contract.

This prayer was therefore properly refused.

3rd. There was no error in refusing the defendants’ third prayer, there being no evidence in the cause that the plaintiff did not faithfully, honestly and to the best of his ability serve the defendants as travelling salesman, while in their employ. The only evidence on this subject is the uncontradicted • testimony of the plaintiff himself.

The fact that his efforts to effect sales did not prove more successful, and that the witness Wolf who was afterwards employed in the same capacity had succeeded in making larger sales, is no evidence that the plaintiff did not serve the defendants honestly, faithfully, and to the best of his knowledge and ability.

4th. It appears in the evidence that after the plaintiff was notified by the defendants that they would employ him no longer as travelling agent and salesman, he accepted a new employment from them in which he continued for three weeks and was then discharged. The proposition in the defendants’ fourth prayer is, that this operated as a rescission and abandonment of the written contract. To this proposition we do not assent. After the defendants refused to continue the plaintiff longer in their employ under the contract of May 10th, it was his duty, not to remain idle during the year, but to seek employment and thereby diminish the loss and damage resulting from the breach of the contract. 17 Md., 420, 430; 34 Md., 222, 223; 45 Md., 163. His acceptance of a new employment either with the defendants, or With other persons after he was prevented by the act of the defendants from performing the contract of May 10th, cannot be construed as a waiver of his rights under the original contract. The Court below was right in refusing the defendants’ fourth prayer, and in granting the third prayer of the plaintiff.

(Decided 17th June, 1879.)

The first prayer of the plaintiff is free from objection; but in our opinion there was error in granting his second prayer, as to the measure of damages.

By this prayer the jury were instructed that if they found for the plaintiff, he was entitled to recover as part of his damages, "five per cent, on all net sales over and above $10,000, which they may believe he would have effected if he had not been discharged.”

Such an element of damage was altogether speculative, contingent and uncertain. There was no rule or standard furnished by the evidence or laid down by the Court, to govern the jury in estimating the amount of sales which the plaintiff might have made, and in the nature of tilings no such rule could have been furnished.

This was left entirely to the mere speculation and conjecture of the jury, and was too uncertain to form a basis in estimating the damages. Abbott vs. Gatch, 13 Md., 314.

For this error the judgment must be reversed and a new trial ordered.

Judgment reversed, and new trial ordered.