Bradley v. Perkins , 138 Mich. 356 ( 1904 )

Grant, J.

(after stating the facts). 1. The contention of defendant is that plaintiff had abandoned his employ, had thereby forfeited his right to the apprentice reserve fund, and that the evidence shows conclusively an act of willful disobedience to the defendant’s foreman, which justified the position taken by the superintendent. We cannot concur in the view that an act of willful disobedience was conclusively established.

Plaintiff’s version is that when the foreman asked him to work he told him he did not want to work, because it was cold; that he had trouble with his feet; to take the j ob to some one nearer a stove; and that the foreman said nothing further, but got another man to do the work. The work was done by another employe, and there is no evidence that the defendant was injured by the action of the plaintiff.

If the jury believed the plaintiff, there was no such refusal to work as would justify the defendant in discharging the plaintiff or imposing a penalty for disobedience. Shaver v. Ingham, 58 Mich. 649, and authorities cited.

2. It is next contended that the plaintiff was not discharged, and that it was his duty to remain until the completion of his three years. The defendant, on the basis of a breach of the contract by plaintiff, told him that he could leave, or continue to work, upon the agreement to remain 30 days above the time provided in the contract. Defendant, under the contract, had no right to make such a requirement, even if he would have been justified in discharging him. The plain inference from the language is, “You are discharged, but you can continue in our employ if you will stay thirty days longer than the original contract provides.” In other words, it required the making of a new contract. Plaintiff’s acceptance would have annulled the former contract and substituted the other in its place. This he was under no obligation to do, and was justified in leaving. Trawick v. Railway Co., 68 Ill. App. 156; People’s Co-operative Ass’n v. Lloyd, 77 Ala. 387; Whitmarsh v. Littlefield, 46 Hun, 418.

3. It is also urged that the defendant under the contract was entitled to determine for himself the question of willful disobedience. This is based upon the following provision of the agreement:

“ If for any acts of disobedience of said party of the second part said party of the first part shall deem it best to discharge said party of the second part, then one-half of the apprentice reserve * * * shall be forfeited to said first party.”

This provision does not give the defendant the authority to pass upon what constitutes an act of disobedience. It means that, when an act of disobedience has been committed, the defendant might discharge him should he deem it best. Upon this point, see Jones v. Transportation Co., 51 Mich. 539; Sloan v. Hayden, 110 Mass. 141.

Such arbitrary power must be evidenced by very clear language; but there is nothing in this contract which justifies the conclusion that it was lodged in the defendant.

The judgment is affirmed.

The other Justices concurred.