Odeneal v. Henry , 70 Miss. 172 ( 1892 )

Woods, J.,

delivered the opinion of the court.

The appellants have no reason to complain of the first instruction given for appellee. Primarily, it was not incumbent on the appellee to satisfy the jury that he had made diligent effort to obtain employment and had failed. If, after his discharge, he had other employment, or, if he could have had, and failed or neglected to secure it, the appellants should have made the proper proofs. Such proof is defensive in its character, and goes to reduce damages assessable against the discharging employer. The burden of proof on this point was on the appellants, and if there was no evidence, as counsel for appellants assert, showing when, if ever, appellee secured other employment, the appellee must not be held to have failed in making out his case. He was only to be required to meet any state of case made by the appellants’ evidence which showed that he had been in other employment during the period of the contract of service, or that he might have been. 2 Greenleaf on Evidence, §261a; Barker v. Insurance Co., 24 Wis., 630; King & Graham v. Steiren, 44 Pa. St., 99; 61 N. Y., 371; Wooers Master & Servant, 238, and cases cited in notes 1 and 2.

The action of the court in giving appellee’s second instruction, and in refusing appellants’ third instruction, as asked, and in modifying the same, and in refusing the eighth instruction prayed by appellants was erroneous. The contract is clearly contained in appellee’s letter of December 11,1889, and the reply thereto and the acceptance of the terms of employment therein by J. H. Odeneal’s letter of December 12, 1889. There was no question of fact as to what the contract was. True, the appellee had sworn that the contract was a verbal one, but his own letter of the eleventh of December, making a distinct proposition for service at $600 per annum, dairy products to be bought or paid for by appellee, and J. IT. Odeneal’s acceptance of this proposition by letter of next day, as requested in appellee’s letter, embodied the contract between the parties. That correspondence brought the minds of the parties together, and the contract was created thereby. The verbal contract which the appellee attempts to.establish antedated, by some indeterminate period of time, the written contract found in the two letters referred to, by the appellee’s, own evidence; and, if it ever had existence, which may well be doubted, it was merged and lost in the subsequent perfect contract in writing. These letters constituted the contract, and the court should have so instructed the jury. The court should further have instructed the jury that, under this contract, appellee was in no event entitled to receive more than $50 per month, less the dairy products consumed by him and his family; and, as these dairy products were shown by appellee to have been worth $10 per month, it is plain that, under the law, as given by the court, the jury was authorized to, and doubtless did, find against appellants the' sum of $20 per month more than the written contract warranted.

It must not he forgotten that, by the reluctant evidence of the appellee, these two letters are perfectly shown .to contain the contract between the parties; for, at the very close of his cross-examination, when his letter of the eleventh of December is produced and presented to him, he admitted that it was his letter, written by him and mailed to Odeneal, and that he declined the offer to make any explanation as to the letter, in view of the most extraordinary statements he had made as to the contract not being in writing. The contract was in writing, and the court should have construed it for the jury’s guidance. The failure to do so not only may have been effectual in procuring the verdict, but it is reasonably certain that it did, in large measure, produce the result arrived at by the jury.

• The fifth instruction given for appellee is open to criticism. "We fear the jury may have been, misled by it, in the terms employed. It pointed with marked emphasis to the insufficiency of the reasons for appellee’s discharge contained in J. H. Odeneal’s letter of February 17, 1891, and declared that the reasons given in that letter do not constitute good and sufficient cause for the discharge of the appellee. Some of the reasons for Odeneal’s dissatisfaction with the result of appellee’s conduct of the dairy are given, but'Odeneal expressly declares that “ it will do no good- to go into the details ” of his dissatisfaction. He had previously declared himself dissatisfied with appellee’s management, but he did not there specify the grounds of his dissatisfaction of the management. He enters into the reasons for his discontent with the financial results at Sligo, under appellee’s supervision, but there is no hint of any reason for the dissatisfaction with appellee’s management of the fann, the herd of cattle and other stock. The letter, on its own face, shows that Odeneal uttered his dissatisfaction with appellee’s management generally, and declined to go into details, to give reasons. The singling out of a particular piece of evidence, and presenting it prominently to the jury, dissociated from all the other proofs in the case, is apt to mislead, and we fear it may have done so here.

The seventh instruction for appellants should have been given as asked. It stated the principle of law applicable with clearness and accuracy, 'qlf good and sufficient reasons for appellee’s discharge existed, the appellants may set them up on trial by way of defense, though they may not have known of them at the time of the discharge. It is'of no importance whether the employer state the reasons for his action, in discharging, to the employe; it is of equally small concern whether he really had knowledge of the justifying/ reasons at the time of the discharge. The all-important question is, did good reason actually exist at the time of the discharge ? If the employe has been unfaithful and disregardful of his duty under the contract, he may be discharged, and the employer may defend any action for breach of contract brought by the employe, because of his discharge, by showing good and sufficient causes for the discharge, though ignorant of any or all the facts when the discharge is made. The inquiry on trial, is, had the employe been unfaithful at the time of his discharge? If yea, it would be remarkable, indeed, if he should be permitted in a court of justice to say; “ True, I was unfaithful, and merited my discharge, but my employer did" not then know of my unfaithfulness, and I must be recompensed in damages for my proper, discharge, because of my employer’s ignorace of my misconduct.”

• It is not easy to say what the views of the learned court were in interpolating the words complained of in this seventh instruction, unless we assume that the charge, as amended by the court, was designed to inform the jury that, at the time of appellee’s discharge, the appellants must have had knowledge of the reasons which would justify their action. If it does not mean thi's, then the amendments were useless and misleading, for the instruction, as asked, correctly stated that it was the naked existence of good and sufficient reasons which would justify the appellants in discharging appellee. This is the rule as laid down in Addison on Contracts,''and'in W(00,clis Law bf^daster ¿’"Sef'faiít, and, as seems, accepted generally.

Reversed ^,nd remanded.